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Ruling
ANDREW RAMIREZ VS DOUBLETREE BY HILTON, A BUSINESS ORGANIZATION FORM UNKNOWN, ET AL.
Aug 13, 2024 |22STCV20626
Case Number: 22STCV20626 Hearing Date: August 13, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 13, 2024 CASE NUMBER: 22STCV20626 MOTIONS: Motion to be Relieved as Counsel MOVING PARTY: Plaintiff Andrew Ramirezs Counsel OPPOSING PARTY: None BACKGROUND Plaintiff Andrew Ramirezs (Plaintiff) counsel of record, Alan Finestone (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship. No opposition has been filed for this motion. LEGAL STANDARD To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal. An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.) The rules have been liberally construed to protect clients. (Vann v. Shilleh, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2); Vann v. Shilleh, supra.) DISCUSSION Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) Counsel states the instant motion is filed for the following reasons: I am the attorney of record for the plaintiff herein, and as such, I have personal knowledge of the following facts and could confidently testify thereto. As a result of various health problems, I am unable to represent the plaintiff at trial. I have attempted to withdraw as plaintiff's attorney. Mr. Ramirez has repeatedly refused to sign a substitution of attorney and refused to obtain a new attorney. Plaintiff has refused to prepare a response to discovery. Plaintiff has failed and refused to cooperate with the prosecution of his case. I am mentally and physically unable to prosecute his claim at trial. I have repeatedly attempted to make an appointment with the plaintiff to prepare responses to defendant. I have prepared a substitution of attorney, but plaintiff refuses to sign and return it. (MC-052.) The Court finds that this is a valid reason for withdrawal. (See Rules Prof. Conduct, rule 1.16.)¿¿¿ Counsel has provided information for all future proceedings in this case. Accordingly, the Court GRANTS the motion to relieve counsel. Counsel shall provide notice of the Courts ruling and file proofs of service of such.
Ruling
FARHAD BEROUKHIM VS ANGEL DANIEL CORREA RAMIREZ, ET AL.
Aug 13, 2024 |21STCV18410
Case Number: 21STCV18410 Hearing Date: August 13, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 13, 2024 CASE NUMBER: 21STCV18410 MOTIONS: Motion for Summary Judgment, or in the alternative, Summary Adjudication MOVING PARTY: Defendant Georges and Georges LLC OPPOSING PARTY: Plaintiff Farhad Beroukhim MOVING PAPERS 1. Notice of Motion and Motion for Summary Judgment or in the alternative, Summary Adjudication 2. Memorandum of Points and Authorities 3. Separate Statement of Undisputed Material Facts 4. Request for Judicial Notice 5. Compendium of Exhibits in Support 6. Declaration of Gueorgui Stefanov 7. Declaration of Nathan D. Andersen OPPOSITION PAPERS 1. Plaintiffs Memorandum in Opposition 2. Plaintiffs Separate Statement in Opposition 3. Plaintiffs Objections to Evidence REPLY PAPERS 1. Georges and Georges LLCs Reply 2. Notice of Errata Re: Compendium of Exhibits in Support BACKGROUND On June 29, 2023, Plaintiff Farhad Beroukhim (Plaintiff) filed the operative first amended complaint (FAC) against Defendants Angel Daniel Correa Ramirez, Georges and Georges LLC, Miguel Angel Correa, Geller Group, and Does 1 to 50 based on an alleged motor vehicle accident. The form complaint alleges that on February 27, 2021, Plaintiffs vehicle was struck by Defendants' vehicle which made an unsafe lane change. (FAC, 4.) Plaintiff asserts a negligence cause of action and alleges that Moving Defendant Georges and Georges LLC (Defendant) operated the vehicle, employed the person who operated the vehicle, owned the vehicle which was operated with its permission, entrusted the vehicle, and was the agent and employees of the other defendants. Defendant now moves for summary judgment or alternatively, summary adjudication, arguing that the subject vehicle had been stolen by co-defendant Angel Daniel Correa Ramirez. Plaintiff opposes and Defendant replies. LEGAL STANDARD [T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) ¿[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., [o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) .) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility. (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party].) JUDICIAL NOTICE The Court grants the request for judicial notice of Plaintiffs first amended complaint. (Evid. Code § 452(d).) EVIDENTIARY OBJECTIONS The Court makes the following rulings on Plaintiffs objections to Defendants evidence: 1. Overruled. In reply, Defendant filed a Notice of Errata which contains the two pages of the deposition transcript of Adam Hughes where he states he is the General Manager of LV Cars, which is a dealership in Las Vegas and a subsidiary of Georges, LLC. (Notice of Errata, Exh. A, Hughes Depo., 11:22-12:23.)[1] (See Forest Lawn Memorial-Park Assn v. Superior Court (2021) 70 Cal.App.5th 1, 8 [A statement lacks foundation if no jury could reasonably find that the witness has personal knowledge of the matter.] [Citation and alterations omitted, emphasis in original.].) 2. Overruled 3. Overruled 4. Overruled 5. Sustained to the extent the testimony relies on payroll and employee files. (Evid. Code § 1272.) 6. Overruled 7. Sustained 8. Overruled 9. Sustained 10. Overruled 11. Sustained 12. Overruled 13. Overruled 14. Overruled DISCUSSION Negligence and Negligent Entrustment The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendants breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) Generally, one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circ*mstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, inexperience or recklessness. (Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1063 [quoting Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 708] [alteration in original; citation omitted].) Absent special circ*mstances, the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. [Citation.] Leaving the keys in the ignition, and the vehicle unlocked and unattended, is not by itself one of these special circ*mstances. (May v. Nine Plus Properties, Inc. (2006) 143 Cal.App.4th 1538, 1541.) Vehicle Code Section 17150 Vehicle Code section 17150 states in relevant part: Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner. (Veh. Code § 17150 [emphasis added].) The liability which [section 17150] imposes upon the owner of a motor vehicle is predicated upon a theory of imputed negligence in cases where the principle of respondeat superior is inapplicable. This section defines the owner's liability in such cases in order to make him liable for the negligence of any person to whom he had expressly or impliedly given permission to Operate his car, and thereby prevent him from escaping liability by saying that his car was being used without express authority or not in his business. (Citations.) (Emphasis added.) The foundation of an owner's liability under section 17150 is the permission, express or implied, given by the owner to another to use the motor vehicle. (Glens Falls Ins. Co. v. Consolidated Freightways (1966) 242 Cal.App.2d 774, 778-79 [internal citations omitted].) Respondeat Superior An employer is vicariously liable for an employees tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.) [A]n employee must be driving a personal vehicle in the course and scope of his employment at the time of the accident to extend vicarious liability to an employer. (Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, 67879.) A plaintiff suing an employer under the doctrine must prove the person who committed the tort was acting within the scope of his or her employment. (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 577.) Analysis Here, the following is undisputed. Plaintiff claims he was involved in a motor vehicle incident with a 2020 Lamborghini, License No. NX513682 on February 27, 2021. (UMF 1.) At the time of the Subject Incident, the Defendant Vehicle was being driven by Defendant Angel Daniel Correa Ramirez ("Ramirez"). (UMF 2.) Defendant sets forth the following additional facts: - The Defendant Vehicle was in California during its transport to LV Cars on February 27, 2021, as Gellar Group was delivering another vehicle to a LV Cars' affiliate in Los Angeles. (UMF 6.) - Ramirez was not known to George's prior to the Subject Incident. (UMF 7.) - Ramirez did not have George's permission to operate the Defendant Vehicle on the date of the Subject Incident.[2] (UMF 8.) - Ramirez was never an employee of George's.[3] (UMF 9.) Although Defendant does not produce conclusive admissible evidence showing that Ramirez stole the subject vehicle, it produces sufficient evidence that Ramirez did not have permission to drive the vehicle and was not an employee of Defendant. Therefore, it meets its initial burden to show it is not liable. The burden shifts to Plaintiff to establish a triable issue of fact. Plaintiff has not produced evidence in opposition and appears to only dispute Defendants facts based on evidentiary objections. Accordingly, the Court finds based on the evidence presented and all reasonable inferences the absence of a triable issue of fact. Therefore, the motion for summary judgment is granted. CONCLUSION AND ORDER Based on the foregoing, Defendant Georges and Georges LLCs Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days. Defendant is ordered to give notice of this ruling and file a proof of service of such. [1] While additional evidentiary matter submitted with the reply ordinarily should not be allowed, the court has discretion to consider it as long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) The Court notes that the missing pages identifying the witness are part of the deposition in this case, where counsel was present. Accordingly, Plaintiffs argument that this testimony is from a completely unknown person is not well taken. (Opposition at p. 5.) [2] Plaintiff did not object to Gantchevs declaration at paragraph 8. [3] Plaintiff did not object to Gantchevs declaration at paragraph 9 on hearsay grounds, but only the basis that this paragraph lacks foundation as to agent.
Ruling
EKATERINA GROMOVA VS IMMACULATE HEART OF MARY SCHOOL, ET AL.
Aug 14, 2024 |Renee C. Reyna |23STCV16505
Case Number: 23STCV16505 Hearing Date: August 14, 2024 Dept: 29 Gromova v. Immaculate Heart of Mary School 23STCV16505 Defendants Motion to Compel Further Responses to Requests for Production Tentative The motion is granted in part and denied in part. Background On July 14, 2023, Ekaterina Gromova (Plaintiff) filed a complaint against Immaculate Heart of Marcy School, the Archdiocese of Los Angeles, and Does 1 through 100, asserting causes of action or premises liability and negligence arising out of an alleged slip and fall on August 14, 2021, outside of the Immaculate Heart of March School. On April 25, 2024, Immaculate Heart of Mary Catholic School and the Archdiocese of Los Angeles Education and Welfare Corporation (erroneously sued as Archdiocese of Los Angeles) (collectively, Defendants) filed their answer to the complaint. On the same day that Defendants answered the complaint, they served Plaintiff with Requests for Production (Set One). (Grannis Decl., ¶ 2 & Exh. A.) Plaintiff served written responses and produced some documents on May 9, 2024. (Id., ¶¶ 3, 7 & Exhs. B-C.) Defendants deemed the responses not code compliant and the photocopies of photographs produced to be of poor quality. (Id., ¶¶ 3, 6-7.) The parties met and conferred but were unable to resolve their dispute. (Id., ¶¶ 8-9.) Defendants scheduled an Informal Discovery Conference, but Plaintiff did not appear. (Minute Order dated August 2, 2024.) Defendants filed this motion to compel on June 25, 2024. Plaintiff filed an opposition on August 1, and Defendants filed a reply on August 7. Neither side seeks sanctions. Legal Standard On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) Notice of a motion to compel further responses must be given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. (Id., subd. (c).) A motion to compel further responses must set forth specific facts showing good cause for the discovery and must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a concise outline of the discovery request and each response in dispute. (Id., subd. (b)(1)-(3); Cal. Rules of Court, rule 3.1345.) Discussion Defendants move to compel further written responses to Requests for Production (Set One), Nos. 1-4, 6-18, and 23-28. Defendants also move for an order requiring Plaintiff to produce certain photographs in an original and unaltered digital format, but the Court notes that this is largely duplicative of their motion to compel as to Requests Nos. 10 and 12. The Court also notes that Defendants Separate Statement addresses only Requests Nos. 1-2, 6-7, 10, 12, 17, and 23-28. Requests Nos. 1-2, 6-7, 10, 12, 17, and 23-28 Plaintiffs responses are not code compliant. (See Code Civ. Proc., §§ 2031.220, 2031.230.) Defendants have shown good cause. The motion to compel further responses as to these requests is granted. Any statement of an inability to comply, including but not limited to an inability to produce digital files or negatives of photographs (for example), must comply with Code of Civil Procedure section 2031.230 and must be verified by the Plaintiff. A declaration from counsel is not sufficient. Requests Nos. 3-4, 8-9, 11, 13-16, and 18 Defendants have not included these requests in the Separate Statement, as required. (Cal. Rules of Court, rule 3.1345.) The motion to compel further responses as to these requests is denied. Conclusion The Court GRANTS in part and DENIES in part Defendants motion to compel a further response. The Court ORDERS Plaintiff to serve a further verified, written, code compliant response, without objection, to Defendants Requests for Production (Set One), Nos. 1-2, 6-7, 10, 12, 17, and 23-28, within 15 days of notice. The motion is otherwise denied. To the extent that Defendants seek an order compelling the production of responsive documents pursuant to Code of Civil Procedure section 2031.320, the motion is denied without prejudice as premature. Moving party to give notice.
Ruling
HECTOR OSORIO GARCIA VS JOSE LUIS LOZANO, ET AL.
Aug 13, 2024 |22STCV32520
Case Number: 22STCV32520 Hearing Date: August 13, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 13, 2024 CASE NUMBER: 22STCV32520 MOTIONS: Motion for Summary Judgment, or alternatively, Summary Adjudication MOVING PARTY: Defendants Jose Luis Lozano, Lorena J. Lozano, and Sonora Family Joint Spousal Trust OPPOSING PARTY: Plaintiff Hector Osorio Garcia MOVING PAPERS 1. Notice of Motion and Motion for Summary Judgment, or alternatively, Summary Adjudication; Memorandum of Points and Authorities; Declaration of Kristine M. Gamboa 2. Separate Statement of Undisputed Material Facts 3. Declaration of Lorena Lozano in Support 4. Defendants Appendix of Exhibits in Support OPPOSITION PAPERS 1. Plaintiffs Memorandum of Points and Authorities in Opposition 2. Plaintiffs Separate Statement of Undisputed Material Facts 3. Declaration of Mark J. Burns in Opposition 4. Plaintiffs Appendix of Exhibits in Opposition REPLY PAPERS 1. Defendants Reply to Plaintiffs Opposition 2. Defendants Reply to Plaintiffs Separate Statement 3. Defendants Objections to Declaration of Mark J. Burns BACKGROUND On October 4, 2022, Plaintiff Hector Osorio Garcia (Plaintiff) filed a complaint against Defendants Jose Luis Lozano, Lorenia J. Lozano, Lorena J. Lozano, Sonora Family Joint Spousal Trust, and Does 1 to 100 for premises liability and negligence. Plaintiff alleges that on October 5, 2020, he was injured on Defendants property at 7169 Dinwiddie St., Downey, CA 90241, after he tripped due to a trench that presented a dangerous condition. (Complaint, 4.) Defendants Jose Luis Lozano, Lorena J. Lozano, and Sonora Family Joint Spousal Trust (Defendants) now move for summary judgment, or alternatively, summary adjudication on the following issues: (1) there is no evidence of breach and causation for the premises liability cause of action; (2) there is no evidence of breach and causation for the negligence cause of action; and (3) there is no evidence that Defendants breached the ADA, California Health & Safety Codes, building codes, and/or ordinances. Plaintiff opposes and Defendants reply. LEGAL STANDARD A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Code Civ. Proc., § 437c, subd. (f)(1).) [T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., [o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. (Aguilar, supra, 25 Cal.4th at 855.) Alternatively, [t]he defendant may [&] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidenceas through admission by the plaintiff following extensive discovery to the effect that he has discovered nothing. (Id.)¿This must be supported with evidence including affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken. (Id. at 85455 [quoting Code Civ. Proc. § 437c(b)].) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility. (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party].) EVIDENTIARY OBJECTIONS The Court declines to rule on Defendants evidentiary objections to the Declaration of Mark J. Burns as it has no effect on the ruling herein. DISCUSSION NegligencePremises Liability The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendants breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendants negligence was a substantial factor in causing plaintiffs harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.) The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. (Brooks v. Eugene Burger Management Corp.¿(1989) 215 Cal.App.3d 1611, 1619; see Civil Code § 1714.)¿ Breach of duty is usually a fact issue for the jury; if the circ*mstances permit a reasonable doubt whether the defendant's conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.] [Citation.] (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.) [T]he decision whether that breach caused the damage (that is, causation in fact) is again within the jurys domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.] [Citations.] (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (Constance) [italics in original].)¿Causation is established by showing that a defendants breach of duty was a substantial factor in bringing about plaintiffs injury, and there is no legal rule relieving defendant from liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Defendants negligence is the actual cause, or cause in fact, of plaintiffs injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) In other words, [the] plaintiff must show some substantial link or nexus between omission and injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)¿¿ Here, the following is undisputed. Plaintiff has worked various construction jobs for the last seven (7) years, and landscaping jobs the last twelve (12) years, whenever they may arise. (UMF 3.) Plaintiffs friend, Sergio, gave Defendant LORENIA J. LOZANO sued erroneously and collectively herein as LORENA J. LOZANO (Lorenia) the Plaintiffs number so that Plaintiff could give her an estimated cost for pruning palm trees on her Property. (UMF 4.) Plaintiff gave Loreina a call to arrange a time to visit the Property and give Loreina an estimated cost to prune the palm trees on her Property. (UMF 5.) Three days after this phone call, Plaintiff visited the Property (Estimation Visit). (UMF 6.) During the Estimation Visit, Plaintiff walked the Property and did not see any trenches, sprinklers sticking up from the ground, roots sticking up above ground, or any other hazards on the Property. (UMF 8.) On October 5, 2020, Plaintiff arrived at the Property at approximately 8:00 8:30 a.m., with his friend, Victor, as he believed the job would require more than one person to complete. (UMF 9.) Loreina instructed Plaintiff that she wanted the palm trees as clean as possible with only three fronds. (UMF 12.) It took Plaintiff approximately 1.5-2 hours to trim the several palm trees in the front of the house on the Property. (UMF 15.) Plaintiff finished pruning the first palm tree, in this second session of palm trees, climbed down the palm tree, stepped onto the ground and was firmly standing on the ground. (UMF 17.) It was at this moment that Plaintiff took a step, tripped and fell forward with his left knee. (Pl. Resp. UMF 18.) The Plaintiff admits there was no object that he tripped on. (UMF 20.) Defendants set forth the following additional fact: - Plaintiff admits that there was no trench on the Property, rather he simply just tripped. (UMF 22.) Here, Defendants meet their initial burden to show there is no evidence that Plaintiff tripped due to a condition on Defendants property. In pertinent part, when Plaintiff was asked during deposition to explain the allegation in his complaint that he tripped on a trench, he responded: There was no trench. I just tripped. (Def. Exh. C, Garcia Depo. 81:17-20.) The burden therefore shifts to Plaintiff to establish a triable issue of fact. In Plaintiffs separate statement, he disputes that he admitted there was no trench, but referenced the planter as a trench due to its height differential. (Pl. Resp. UMF 22.) As a result, Plaintiff argues the dangerous condition was the fact the planter that contained the trees Plaintiff was pruning was lower than the adjacent cement. During Loreina Lozanos deposition, she testified to this fact stating that the cement in her backyard is not level with the soil in her adjacent planter; the cement is about two-inches higher. (Pl. Exh. A, Lozano Depo. 28:3-13, 29:4-17.) In reply, Defendants do not dispute where the fall took place. (Reply, 2.) Instead, they argue that because the complaint referenced a trench, Plaintiff is bound to showing there was a trench or anything similarly defined. However, Defendants do not offer a universal definition of a trench, or show they were not aware that Plaintiff was claiming the dangerous condition was the height difference of the planter and cement. (See Pl. Exh. B, Lozano Depo. 33:14-18 [questioning whether Ms. Lozano knew of the drop from her backyard cement into the planter]; Exh. H. Osorio Depo. 67:9-15 [demonstrating on a photograph the area where the incident occurred].) Therefore, based on Plaintiffs evidence that he tripped on the height differential, a triable issue of fact exists regarding breach and causation. In reply, Defendants set forth argument for the first time that the alleged condition was not dangerous since it was open and obvious. (Reply at pp. 4-6.) However, even if the Court were to consider this argument, Defendants do not set forth evidence in their separate statement sufficient for the Court to determine this issue as a matter of law.[1] It is ordinarily a question of fact & whether [a] particular danger was obvious, [or] whether an invitee was contributorily negligent &. [Citations.] (Henderson v. McGill (1963) 222 Cal.App.2d 256, 260; see also Curland v. Los Angeles County Fair Assn (1953) 118 Cal.App.2d 691, 695696 [Whether [a] danger was obvious to plaintiff [is] a question of fact for the jury. [Citations.] Whether a person, under the circ*mstances, made a reasonable use of his faculties is also a question for the jury. The law presumes that a person possessing the normal faculties of sight must have seen that which was in the range of his sight].) Therefore, the motion for summary judgment/adjudication is denied. As a result, the Court declines to address Defendants argument surrounding the violation of statutes as it would have no effect on adjudicating the causes of action. CONCLUSION AND ORDER Accordingly, Defendants Jose Luis Lozano, Lorena J. Lozano, and Sonora Family Joint Spousal Trusts Motion for Summary Judgment or adjudication is DENIED. Defendants shall provide notice of this ruling and file a proof of service of such. [1] Defendants appear to request that the Court find the defect was open and obvious, based solely on the Courts review of photographs, with no notice to Plaintiff and no evidence submitted in support of this argument other than the photographs. (See Reply at p. 3 [where photographs of the condition in question are submitted in support of the summary judgment from which the court can conclude that the condition was open and obvious, expert witness testimony to the contrary did not create a triable issue of fact.].) The photographs do not demonstrate that the defect was open and obvious as a matter of law. (See Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 25 [summary judgment cannot be granted where reasonable minds could differ as to whether the defect was trivial or open and obvious].)
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Aug 12, 2024 |CVRI2204798
MOTION TO CONSOLIDATE ON 3RDAMENDED COMPLAINT FOR OTHERLONGORIA VS RIVERSIDEPERSONAL INJURY/PROPERTYCVRI2204798 COUNTY SHERIFF'SDAMAGE/WRONGFUL DEATH TORTDEPARTMENT(OVER $25,000) OF CARLOSLONGORIA BY CARLOS LONGORIATentative Ruling:DENY, without prejudice.The GUY matter is currently set for a hearing on the Motion for Summary Judgment on January24, 2025. In addition, the parties have expressed an interest in private mediation in the GUYmatter. For these reasons, this motion is procedurally premature. The court denies the motionwithout prejudice, and without reaching the merits of consolidation at this time.
Ruling
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Aug 12, 2024 |23CV-0203093
HAYNES VS. OASIS FUN CENTER, INC.Case Number: 23CV-0203093This matter is on calendar for review regarding trial setting. The previous trial date was vacated by the Court’sorder dated May 21, 2024. The Court designates this matter as a Plan II case and intends to set the matter for trialno later than February 25, 2025. Both sides have posted jury fees. The parties are ordered to meet and conferregarding trial dates and to appear to provide the Court with available trial dates.
Ruling
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Aug 14, 2024 |23CV-0202971
WOODWARD VS. FELTSEN, ET AL.Case Number: 23CV-0202971This matter is on calendar for review regarding status and trial setting. At the last hearing, the Court orderedPlaintiff’s counsel to provide notice of today’s hearing date. No proof of service of notice of hearing for today’sdate is on file. If both parties appear today the Court will proceed with discussing status and trial setting.However, if Defendant fails to appear the Court will have to reset this matter and again order Plaintiff to providenotice.
Ruling
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Aug 15, 2024 |20CV02629
20CV02629TODER v. DRESCHER, et al. DEFENDANT TEMPLE BETH EL’S MOTION TO QUASH AND FOR PROTECTIVE ORDER PREVENTING DEPOSITION AND PRODUCTION OF DOCUMENTS The motion to quash is granted in part. The court orders that the deposition and documentproduction can convene and conclude no later than 8/23/24. No information related to the natureand substance of any coverage dispute, or protected by the attorney-client privilege, shall bedisclosed. Code of Civil Procedure section 2017.210 “creates a statutory exception that allowslimited discovery of a defendant's liability insurance coverage as a matter of right; that is to say,without the need for a threshold showing of relevancy and admissibility as is required under the Page 1 of 2general discovery statute, section 2017.010. Under section 2017.210, a party is entitled todiscover the ‘existence and contents of any agreement under which any insurance carrier may beliable to satisfy in whole or in part a judgment that may be entered in the action or to indemnifyor reimburse for payments made to satisfy the judgment. This discovery may include the identityof the carrier and the nature and limits of the coverage. A party may also obtain discovery as towhether that insurance carrier is disputing the agreement’s coverage of the claim involved in theaction, but not as to the nature and substance of that dispute.’” (Catholic Mutual Relief Society v.Superior Court (2007) 42 Cal.4th 358, 366-67.)Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 2 of 2
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