2018-00228054-CU-PO

Renee Wimer vs. The Regents of the University of Ca

Nature of Proceeding: Motion for Summary Judgment (Regents of the University)

Filed By: Lampe, Ross E.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the moving defendant’s 10 Undisputed Material Facts, which of plaintiff’s five (5) Additional Material Facts and/or which of the objections to evidence will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant The Regents of the University of California’s (“Regents”) motion for summary judgment as against plaintiff Wimer is ruled on as follows.

Defendant Sodexo’s 9/9/2019 “joinder” in Regents’ motion for summary judgment is DROPPED since Local Court Rule 2.09 requires that any party who desires to receive the same relief as another party and files papers “joining” another party’s must comply “with all procedural requirements for the filing of motions, including payment of filing fees, proper notice, format of motion and method of service” (underline added for emphasis) and Sodexo’s service of its “joinder” by mail on 9/9/2019 does not provide

the minimum 75-day notice required for summary judgment motions.

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

Moving counsel failed to comply with CRC Rule 3.1354(b), which expressly prohibits the restating or rearguing of objections to evidence in the separate statement.

Opposing counsel failed to comply with CRC Rule 3.1116(c), requiring deposition testimony be highlighted in a manner that calls attention to the cited testimony.

Factual Background

This action arises out of an alleged slip-and-fall incident occurring on 3/1/2016. Plaintiff took her son to an appointment at U.C. Davis Medical Center, where plaintiff alleges she slipped in a small puddle of water and fell to the floor. Plaintiff claims that prior to the fall, she noticed a housekeeper pushing a cart and holding a rag mop and as plaintiff approached, the housekeeper pushed the cart to the side so plaintiff could walk by. The complaint asserts a single cause of action for dangerous condition of public property.

Moving Papers. Defendant Regents now moves for summary judgment on the grounds there is no evidence that a dangerous condition of public property existed at the time of plaintiff’s injury and/or that Regents created the allegedly dangerous condition. More specifically, Regents maintains that prior to the fall, plaintiff and her mother were carrying cups with water; plaintiff never saw the housekeeper’s “damp mop” either touch the floor or drip any liquid onto the floor and did not see anything on the floor before the fall; the housekeeper’s declaration avers that there was no liquid or other substance on the floor prior to plaintiff falling and that she did not have a mop or bucket but rather a trash barrel which did not contain anything, including liquids; and while plaintiff did after the fall notice a puddle of water on the floor, she does not know its source. As support for summary judgment here, Regents relies on Undisputed Material Fact (“UMF”) Nos. 1-10.

Plaintiff’s Opposition. Plaintiff opposes, arguing that the housekeeper never “properly inspected” the area of the fall before it occurred and thus, cannot competently establish the absence of any substance on the floor; the housekeeper was pushing a cart and carrying a “damp mop;” the cups of water being carried by plaintiff and her mother were “sealed” and did not leak or spill prior to the fall; when the fall occurred, both cups of water were tossed “several feet” in front of plaintiff and her mother, while the housekeeper immediately “screamed words to the effect of ‘Oh my God, I am so, so sorry!’” and finally, after the fall, plaintiff and her mother observed “a puddle of water with Plaintiff’s shoe mark.”

Objections to Evidence

Plaintiff filed no written objections to evidence.

Defendant Regents’ written objections to plaintiff’s evidence are overruled. To the extent Regents’ responses to several of plaintiff’s AMF purport to assert objections to the AMF themselves, such objections must be overruled because objections are

properly directed solely at evidence. (See, CRC Rules 3.1352, 3.1354.)

Analysis

Defendant’s Initial Burden of Production. The threshold question here is whether Regents’ moving papers are sufficient to satisfy their initial burden of production under Code of Civil Procedure §437c(p)(2) and coupled with the fact that the opposition papers do not contend otherwise, this Court finds that the moving papers are sufficient to successfully shift to plaintiff the burden to produce admissible evidence which demonstrates the existence of at least one triable issue of material fact.

Plaintiff’s Burden of Production. In determining whether plaintiff met her burden of production here and established at least one triable issue of material fact, this Court must construe the evidence offered in opposition 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.) Applying this standard to the evidence now in the record, the Court concludes that plaintiff has satisfied her burden of producing evidence sufficient to create a triable issue of material fact relating to the two questions raised by this motion: Whether there is evidence showing the existence of a dangerous condition of public property at the time of plaintiff’s injury and whether such condition was caused or created by Regents.

While it is undisputed that plaintiff herself testified she neither saw the housekeeper’s “damp mop” touch the floor or drip any liquid onto the floor nor saw anything on the floor before the fall and that the housekeeper too stated there was no liquid or other substance on the floor prior to plaintiff’s fall, the evidence plainly demonstrates that a puddle of liquid was observed by plaintiff, her mother and the housekeeper in the area after the fall occurred. According to the housekeeper, the cups of water being carried by plaintiff and her mother were seen empty on the floor after the fall but according to plaintiff’s mother, the “sealed” cups of water which were being carried were thrown forward during the fall and no water from them came into contact with them. If this latter evidence is believed, the liquid ultimately seen on the floor in the area of the fall did not come from the cups of water carried by plaintiff and her mother and a reasonable factfinder could conclude the liquid more likely than not originated from the mop which plaintiff and her mother attest was being carried by the housekeeper. As such, the Court holds the evidence proffered by the opposition is, when construed liberally in favor of plaintiff, sufficient to establish a triable issue of fact relating to not only whether a dangerous condition of public property existed at the time of plaintiff’s injury but also whether such condition was caused or created by Regents or its employees.

Conclusion

Although the moving papers satisfied defendant’s initial burden of production under Code of Civil Procedure §437c(p)(2), plaintiff has produced evidence which is sufficient to demonstrate the existence of triable issues of material fact and thereby mandate denial of summary judgment in favor of Regents.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)