2015-00176660-CU-BC

Carl H. Shin vs. Capital Plaza Partnership

Nature of Proceeding: Motion for Summary Judgment

Filed By: Hallissy, John P.

Defendants Shin and Son’s (collectively “Shin”) motion for summary judgment on plaintiff Capital Plaza Partnership’s (“CPP”) complaint for property damage caused by Shin’s negligence is DENIED As follows.

Both moving and opposing counsel failed to comply with CRC Rule 3.1350(g), requiring that when evidence exceeds 25 pages it shall be included in a single volume of evidence (including declarations) with a table of contents.

Both moving and opposing counsel failed to comply with CRC Rule 3.1116(c), requiring deposition transcripts cited as evidence highlighted in some manner that calls attention to the cited testimony.

Moving counsel failed to comply with CRC Rule 3.1354(b)(2) and (3), requiring that written objections to evidence state the page and line numbers of the material objected and also “quote or set forth the objectionable statement or material.”

Opposing counsel failed to comply with CRC Rule 3.1354(b), requiring that written objections to evidence be set forth in a separate document and not only state the page and line numbers of the material objected but also “quote or set forth the objectionable statement or material,” as well as prohibiting objections to evidence from being restated or reargued in the separate statement.

Factual Background

In 2011 CPP leased a commercial property to Shin for use as a restaurant/bakery. CPP alleges that Shin negligently steam-cleaned the kitchen in the restaurant/bakery on one occasion in June 2012, resulting a variety of water damage to the floor, subfloor, structural components and the basement space below. Trial is set to commence on 5/15/2018.

Moving Papers. Shin now moves for summary judgment on the ground that Shin was neither negligent nor the proximate cause of the alleged damages, the latter of which Shin contends was the result of moisture seepage over “many, many years.” As support for this motion, Shin offers Undisputed Material Fact (“UMF”) Nos. 1-20 (although a number of these UMF do not appear to meet CRC Rule 3.1350(a)(2)’s definition of “material facts” (i.e., “facts that could make a difference in the disposition of the motion”) and should therefore not have been included.)

Opposition. CPP opposes the motion, contending that Shin failed to meet his initial burden of production on the questions of negligence and causation but regardless, there are triable issues of material fact on both questions so as to mandate denial of summary judgment. CPP effectively admits that all but four of Shin’s 20 UMF (i.e.,

UMF Nos. 13-14, 19-20) are undisputed and offers another five Additional Material Facts (“AMF”) in an attempt to defeat summary judgment. The court notes Shin did not respond to any of the AMF other than purported objections to three AMF, which objections are ruled on below.

Objections to Evidence

CPP’s purported objections in its separate statement to Shin’s evidence are overruled because they fail to comply in various respects with the express requirements of CRC Rule 3.1354(b).

To the extent CPP’s separate statement also purports to include objections to Shin’s UMF Nos. 6, 19 and 20 themselves, such objections are also overruled since objections are properly directed at evidence only. (See, CRC Rules 3.1352, 3.1354.)

Shin’s written objections to CPP’s evidence fail to comply with the express requirements of CRC Rule 3.1354(b)(2) and (3) and are therefore overruled except for objection No. III to CPP’s Exhibit D in opposition, which singular objection is sustained.

To the extent Shin also purports to object to CPP’s AMF Nos. 2-4 themselves, such objections are overruled since objections are properly directed at evidence only. (See, CRC Rules 3.1352, 3.1354.)

Shin Satisfied His Initial Burden of Production

The court holds that defendant Shin’s moving papers are sufficient to satisfy his initial burden of production under Code of Civil Procedure §437c(p)(2) with respect to both questions of negligence and causation, particularly since all of CPP’s purported objections to evidence have been overruled. Accordingly, Shin has successfully shifted to CPP the burden to produce evidence which, when construed liberally, is sufficient to establish the existence of at least one triable issue of material fact which precludes judgment as a matter of law in favor of Shin on the specific grounds advanced in the notice of motion.

CPP’s Met Its Burden of Production

The court holds that CPP has carried its burden of producing evidence sufficient to create a triable issue of material fact and this conclusion is reinforced by the well-established rule that the evidence offered in opposition must be construed liberally while the evidence in support of the motion is construed narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).) In particular, the court finds there are triable issues of material fact in connection with UMF Nos. 13-14, 19-20 and AMF Nos. 1-5

Shin’s UMF 13 states that CPP is not aware of Shin or any of his agents being told not to steam clean the kitchen floor at the leased premises. However, the evidence cited in opposition indicates the Shin’s agents were told on the date in question not to steam

clean the kitchen floor but they may not have been able to hear this instruction due to the noise from the compressor. Construing this evidence liberally, the court concludes there is a triable dispute over UMF 13.

UMF 14 asserts that the floor of the kitchen was made of linoleum which was installed in the mid-1980’s. According to the evidence cited in opposition, the floor was actually described as “urethane cement” while the response to UMF 14 states it was “monolithic polyurethane sheet.” Either way, there is clearly a dispute over UMF 14 which is deemed “material” by virtue of its inclusion in Shin’s separate statement and according to Nazir, this mandates denial of summary judgment.

According to UMF 19, the various damages to the subfloor, joists and the ceiling of the basement below were not caused by a single event but rather years of moisture intrusion over many, many years. However, the evidence offered by the opposition indicates not only that “pressure washing” which took place in June 2012 destroyed the seal around the drains and outlets in the kitchen but also that just a few days later, standing water and water still dripping from the ceiling, walls and light fixtures was observed. When construed liberally, this evidence is enough to demonstrate that at least some of the damages claimed by CPP were directly caused or contributed to by the steam cleaning incident in June 2012.

UMF 20 maintains that it was “entirely appropriate for the [linoleum] floor of a kitchen… to be washed with steam” and a “typical professional kitchen floor should allow for professional cleaning of the floor.” According to the opposition, there is an initial dispute over whether the floor is linoleum or urethane, whether any pressure washing of the subject floor was either appropriate or permitted and if it were, the amount of pressure which would be appropriate.

Moreover, CPP’s own AMF are, both individually and collectively, sufficient to establish the existence of triable issues of material fact relating to Shin’s negligence and causation of the alleged damages, especially when the supporting evidence is construed liberally. In short, the AMF tend to show that the polyurethane floor in the kitchen of the lease premises was in “good shape” when Shin took possession; the waterproofing seals around the polyurethane floor and sinks were “blasted out” by the power washing; high pressure steam cleaning is not a proper method to clean a commercial kitchen when there is a basement being used below the kitchen; and Shin knew or should have known there was a basement below the kitchen of the lease premises.

Conclusion

Because CPP satisfied its burden of producing evidence showing the existence of at least one triable issue of material fact relating to the questions of negligence and causation particularly when this evidence is construed liberally, the present motion for summary judgment must be and hereby is denied.