Case Number: 12CL4532    Hearing Date: September 09, 2014    Dept: 77

Defendant Park’s Transmission, Inc.’s Motion for Summary Judgment, or in the Alternative Summary Adjudication is DENIED. CCP § 437c.

Defendant has not produced sufficient evidence to entitle it to summary judgment as a matter of law. That is, the separate statement, MF Nos. 1-10, and the declaration of Mikouya Sargizian and evidence attached thereto, are insufficient to show that Defendant is entitled to summary judgment.

The elements of negligence are a duty the defendant owes to the plaintiff, a breach of that duty by the defendant, a causal connection between the breach and the plaintiff’s injury, and actual injury. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 537, p. 624.) In the absence of any one of these elements, no cause of action for negligence will lie.

Here, defendant has not discharged its initial movant’s burden and the burden to respond has not shifted to plaintiff. When a defendant seeks summary judgment, it 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. CCP § 437c(p)(2). Defendant has not established that plaintiff cannot prevail on her claim.

Plaintiff’s First Amended Complaint alleges that “the intake manifold which regulates oil flow to the engine was never checked or replaced,” causing damage to her vehicle, apparently because that manifold had a hole in it. In moving for summary judgment, defendant has produced no declaration from a percipient witness; only a declaration from counsel. This is insufficient to discharge defendant’s burden. Further, defendant does not appear to directly establish that it was not negligent, but rather seeks to disprove the claim that it failed to follow the GM Bulletin (which Exhibit E to defendant’s motion indicates did not apply to defendant’s vehicle; whether defendant did or did not follow that bulletin thus does not appear dispositive.) Exhibit E, the Bureau of Automotive Repairs report, does not appear to establish that defendant was not negligent, even if that report is given full evidentiary value though hearsay.

Accordingly, defendant has not made a prima facie showing that it did not breach its duty to Plaintiff. In this case there is a triable issue of material fact as to whether defendant improperly inspected or negligently repaired plaintiff’s vehicle. As such, summary judgment is not proper as a matter of law. Therefore, the motion for summary judgment is denied.

The request for summary adjudication is also denied. Per CRC 3.1350(b), “if made in the alternative, a motion for summary adjudication may make reference to and depend upon the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, 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.”

Defendant seeks summary adjudication on the issue of punitive damages. In the separate statement, defendant states that there is no evidence to support plaintiff’s claim that defendant improperly inspected or negligently repaired her vehicle. Nowhere in the separate statement are punitive damages addressed. As such, the request for summary adjudication is denied.

Moving party to give notice.