2017-00216691-CU-MC

City of Elk Grove vs. Kiran Rawat

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Rawat, Kiran

Self-represented Defendant Kiran Rawat’s motion for summary judgment, or in the alternative, summary adjudication, is denied.

Plaintiffs the City of Elk Grove and the People of California’s request for judicial notice is granted.

In this action, Plaintiffs assert causes of action for abatement of public nuisance and

drug abatement and seek injunctive relief and civil penalties in connection with the subject property located at 6136 Demonte Way in Elk Grove. Plaintiffs seek to have the subject property declared a public nuisance as a result of violations of numerous laws including drug house abatement laws. Plaintiff alleges that Defendant owns the subject property which has been home to a number of tenants and occupants and that the City has received over 100 complaints from neighbors including regarding an incident allegedly involving the property where a gun was fired, resulting in a bullet going through a neighbors’ wall.

While the papers are not entirely clear, Defendant seeks summary judgment on the basis that she has evicted all occupants, that the complaint is barred by “res judicata”, that Plaintiffs assert charges against her that are barred by Proposition 218, that she is not responsible for the subject conduct, that it is Plaintiffs’ duty to take action, and that Plaintiffs failed to plead facts showing her conduct adversely affected the public.

Defendant’s motion is fraught with procedural deficiencies. While Defendant is self-represented, this did not excuse her from complying with the relevant rules of procedure. Once again, a self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944.) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247; see also Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.)

First, as pointed out by Plaintiffs in opposition, Defendant failed to serve the motion on them despite the proof of service attesting to personal service on the City Plaintiffs were only able to find the motion on the Court’s on-line docket. This Court has previously cautioned Defendant against filing fraudulent documents. (Plfs.’ RJN Exh. D.) Nevertheless, Plaintiffs have opposed the motion on the merits, and given the numerous other deficiencies, the Court will not base its denial on the failure to serve. (See, e.g. Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Defendant’s notice of motion and separate statement are also deficient. First, to the extent that Defendant is moving for summary adjudication, Defendant failed to comply with CRC, Rule 3.1350(b) which requires that “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” The notice and separate statement fails to identify any specific cause of action, affirmative defense or issue to be adjudicated. The motion for summary judgment is similarly deficient. (CRC, Rule 3.1350(d)(1)(A), (h).) “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (CCP § 437(b)(1).)

In any event, and to the substance of the matter, Defendant has failed to submit any admissible evidence in support of her motion. The only evidence submitted is her own declaration that contains no indication that it is based on her personal knowledge. The two page, six paragraph declaration is nothing more than legal argument and legal conclusions which are not evidence. (Tuchscher Dev. Enterprises, Inc. v. San Diego Unified Port District (2003) 106 Cal.App.4th 1219, 1240.) “It is axiomatic that argument is not evidence.” (People v. Breaux (1991) 1 Cal. 4th 281, 313.) On summary judgment motions, it is required that the showing be made by competent admissible evidence within the personal knowledge of the declarant; averments on information

and belief are insufficient; and the pleadings frame the issues to be decided. Gallant v. City of Carson (2005) 128 Cal.App.4th 705, disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512. Legal conclusions are not admissible evidence. “The affidavits must cite evidentiary facts, not legal conclusions or “ultimate ” facts. (6 Witkin, Cal. Procedure (3d ed. 1985) § 288, p. 587.)” (Hayman v. Block (1986) 176 Cal. App. 3d 629, 639.) In this regard, it must be recognized that summary judgment is a drastic measure, precluding as it does, a trial on the merits. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) In ruling on the motion, the Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). The responding party does not have to produce evidence of a triable issue of fact until and unless the moving party carries its burden of showing there is no triable issue of fact. So, for example, a frequent legal error in motions for summary judgment, usually committed by moving defendants, is to argue “the plaintiff has failed to produce any evidence to support” an element of its cause of action. To the point, however, the plaintiff has no duty to make any evidentiary response to the defendant’s motion until and unless the defendant has produced evidence which either (a) “negates an element of the plaintiff’s cause of action” or (b) shows “the plaintiff does not possess, and cannot reasonably obtain, needed evidence” to support its cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 855.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (see Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail. [Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107.) “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; see also § 437c, subd. (c).) Indeed, it is only upon meeting her burden, that the burden shifts to the defendant to demonstrate the existence of a triable issue of material fact. (Aguilar, supra, at pp. 849-850; CCP 437c (p)(1).) Moving party has not met her burden.

Further, Defendant attaches an unauthenticated document titled “Description of related cases showing Gross injustice, Terror, Destruction and Public Killings” which is not only objectionable on numerous grounds, but also appears to have nothing whatsoever to do with this case. The Court has sustained Plaintiffs’ evidentiary objections in their entirety. As a result, there is no admissible evidence supporting the instant motion and Defendant failed to meet her burden to show that she is entitled to judgment as a matter of law on Plaintiffs’ complaint. Thus, the burden never shifted to Plaintiffs to demonstrate the existence of a triable issue of material fact. The motion is denied on this basis alone.

Defendant’s reply consists of a difficult to follow collection of documents which do not coherently deal with Plaintiffs’ evidentiary objection. In fact Defendant appears to try and offer evidence to cure the deficiencies in the moving papers in the form of a declaration from her spouse, Raj Singh. In general, a moving party is not permitted to submit new facts and evidence in their reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308.) In any event, the new declaration suffers from the same defects as the declaration submitted with the moving papers.

Given the above, the Court need not determine whether Plaintiffs have demonstrated a triable issue of material fact.

The motion is denied in its entirety.

Plaintiffs’ evidentiary objections are sustained.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required. (A formal order pursuant to CCP § 437c(g) is unnecessary. The court did not determine whether or not there was a triable issue of material fact.)