Case Number: BC619247 Hearing Date: September 10, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

LYDIA DOLORES KANEY,

Plaintiff(s),

vs.

MARYLIN MAZZA, et al.,

Defendant(s).

Case No.: BC619247

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

September 10, 2019

1. Background Facts

Plaintiff, Lydia Dolores Kaney filed this action against Defendants, Marylin Mazza and Shirley Cassell for damages arising out of a fall that occurred in a home rented by Mazza and owned by Cassell. Plaintiff sustained serious injuries as a result of the fall. Each of the defendants has filed a cross-complaint against the other defendant.

On 5/07/19, the Court granted a motion for determination of good faith settlement. The Court found a $300,000 settlement between Plaintiff and Mazza was in good faith.

2. Motion for Summary Judgment

Cassell moves for summary judgment, contending (a) she had no duty to warn Plaintiff of the open and obvious condition of the steps, and (b) she had no notice that the steps were dangerous because her tenant failed to give her such notice. She also contends there were no code violations relating to the steps when she bought the property, and she was “grandfathered in” to the code as it existed at the time she purchased the property. Alternatively, she moves for summary judgment on the ground that Plaintiff cannot prove causation, as she does not remember how she fell.

a. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant’s initial evidentiary showing may “consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) See Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party’s supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

b. Separate Statement

Plaintiff argues Defendant’s separate statement violates CRC 3.1350(d) and should be disregarded. 3.1350(d) applies to motions for summary adjudication, not motions for summary judgment. Defendant’s separate statement complies with 3.1350(h) as it relates to a motion for summary judgment, as opposed to adjudication. The Court will consider the motion on its merits.

c. Evidentiary Objections

Defendant submitted evidentiary objections with her reply to the opposition. The Court declines to rule on the objections, as doing so would not change the outcome of the motion. CCP §473c(q).

d. Causation

While the parties raise numerous arguments in support of and in opposition to the motion for summary judgment, the Court finds the causation issue is dispositive, and therefore will only rule on the causation issue.

A cause of action for premises liability includes the following essential elements: (1) the defendant owned, leased, occupied or controlled the subject premises; (2) the defendant was negligent in the use or maintenance of such premises; (3) that plaintiff was harmed; and (4) that defendant’s negligence was a substantial factor in causing plaintiff’s harm. CACI No. 1000.

Defendant’s fact 20 states, “Plaintiff does not remember falling, how she fell, or what caused her to fall.” This fact is undisputed. This fact is also supported by admissible evidence, in the form of Plaintiff’s own deposition testimony.

Plaintiff argues, in opposition to the fact, that it does not alter the analysis regarding breach of implied ad statutory duties of maintenance and repair. Plaintiff is correct. The fact, however, is not intended to relate to duty or breach. The fact is intended to relate to causation, which is an element of a claim for negligence and also for premises liability, the sole two causes of action stated in the complaint.

When opposition to summary judgment is based entirely on inferences, such inferences must be “reasonably deducible from the evidence and not such as are derived from speculation, conjecture, imagination or guesswork.” Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647. Plaintiff herein has no idea how she fell. Thus, even if Defendant breached some duty to maintain or repair the stairs (an issue the Court declines to rule on), and even if the stairs were not open and obvious (an issue the Court also declines to rule on), Defendant met her initial burden to show Plaintiff lacks evidence that the state of the stairs caused the fall, and Plaintiff failed to raise a triable issue of material fact in this regard.

The motion for summary judgment is granted.

Moving Defendant is ordered to give notice.