Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Holbrooke Sawyer v. Calle Real Shopping Center, et al.
Case No: 18CV01174
Hearing Date: Tue Jan 21, 2020 9:30

Nature of Proceedings: Motion Summary Judgment (2)

(1) Motion of Defendant General Paving Management for Summary Judgment

(2) Motion of Defendant Trader Joe’s Company for Summary Judgment or Summary Adjudication

ATTORNEYS:

For Plaintiff Holbrooke Sawyer: Renee J. Nordstrand, Douglas M. Black, Matthew M. Morrison, NordstrandBlack PC

For Defendant General Pavement Management, Inc.: Jerry C. Popovich, N. Asir Fiola, Celeena B. Pompeo, Selman Breitman LLP

For Defendants The Towbes Group, Inc., Trader Joe’s Company, Dr. Earl M. Hill Family Limited Partnership, Cal-Real Properties, L.P., and Michael Towbes Construction and Development, Inc.: Anthony J. Ellrod, Natalya Vasyuk, Mannin & Kass Ellrod, Ramirez, Trester LLP

RULING:

(1) For the reasons set forth herein, the motion of defendant General Paving Management for summary judgment is denied.

(2) Trader Joe’s Company motion for summary judgment or, alternatively, for summary adjudication is off calendar [the Court was informed, via email on 1/17/20, that was the wish of those parties].

ANALYSIS

Motion of General Paving Management for Summary Judgment

On December 15, 2017, plaintiff Holbrooke Sawyer tripped on a wheel stop located in a parking lot in front of the Trader Joe’s store in the Calle Real Shopping Center located at 5767 Calle Real, Goleta, California. (Plaintiff’s Response to Defendant General Paving Management’s Separate Statement [PSS-GPM], undisputed fact 1.)

Defendant General Paving Management (GPM) is an asphalt pavement company. (PSS-GPM, undisputed fact 15.) In April 2017, GPM performed repairs to the portions of the parking lot on the premises where Sawyer tripped. (PSS-GPM, fact 23 [undisputed on this point].)

According to GPM, during the April 2017 pavement repair, GPM removed seven wheel stops to perform its pavement repair and then reinstalled the seven wheel stops in their exact same location that existed prior to the repair. (GPM Separate Statement, fact 27; Miller decl., ¶ 11.) According to Sawyer, the wheel stops were not reinstalled in their exact same locations. (Avrit decl., ¶¶ 9-12 & exhibits D-F, G, H.) Also, while Miller states in his declaration that the wheel stops were reinstalled in their exact same location, Miller testifies in his deposition that he only drove through the project once, did not take note of any parking stripes, and has no idea where the seven wheel stops would have been. (Miller depo., pp. 64-68 [Plaintiff’s exhibit C].) (Note: Plaintiff fails to provide electronic bookmarks for exhibits in violation of Cal. Rules of Court, rule 3.1110(f)(4).)

According to GPM, during the April 2017 pavement repair, GPM did not install new parking lines at the subject premises. (GPM Separate Statement, facts 31-33; Miller decl., ¶¶ 6, 7.) According to Sawyer, the parking lines relative to the wheel stops were changed. (Avrit decl., ¶¶ 9-12 & exhibits D-F, G, H.) Again, while Miller states in his declaration that GPM did not modify the location of the parking stripes, Miller testifies in his deposition that he only drove through the project once, did not take note of any parking stripes, and has no idea where the seven wheel stops would have been. (Miller depo., pp. 64-68, 192 [Plaintiff’s exhibit C].)

On March 8, 2018, Sawyer filed her original complaint in this action for personal injuries. On April 18, 2018, Sawyer filed her first amended complaint (FAC), which included causes of action for negligence and for premises liability against GPM.

On July 1, 2018, GPM filed its answer to the FAC, generally denying the allegations thereof and asserting seven affirmative defenses.

On August 26, 2019, Sawyer requested, and the Court entered, dismissal as to the premises liability cause of action against GPM. The negligence cause of action against GPM is the sole remaining cause of action against that defendant.

On November 7, 2019, GPM filed this motion for summary judgment. The motion is opposed by Sawyer.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

“[Plaintiff’s] expert’s declaration is to be liberally construed. [Citation.] We must resolve ‘any doubts as to the propriety of granting the motion in favor of the plaintiff. [Citation.]’ [Citation.] The requisite of a detailed, reasoned explanation for expert opinions applies to ‘expert declarations in support of summary judgment,’ not to expert declarations in opposition to summary judgment. [Citation.] This is because a defendant moving for summary judgment bears the heavy ‘“burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” [Citation.]’ [Citation.] On the other hand, a plaintiff opposing a motion for summary judgment need only raise a triable issue of fact.” (Jennifer C. v. Los Angeles Unified School District (2008) 168 Cal.App.4th 1320, 1332-1333.)

In opposing the motion, Sawyer makes a number of objections that are improperly identified as evidentiary objections but are objections to separate statement facts. Although some of the objections generically refer to “supporting evidence,” the objections fail to quote the evidence itself and to provide necessary citations. (See Rules of Court, rule 3.1354(b).) Consequently, the Court does not rule on Sawyer’s evidentiary objections as presented.

In reply, GPM has filed evidentiary objections. The objections to exhibits D, E, F, G, and H, and to the declaration of Brad Avril, in general, and as to paragraphs 10, 11, and 12 are overruled. The objections go to the weight of the evidence rather than to its admissibility. The Court does not rule on the remaining objections as unnecessary to the disposition of this motion. (See Code Civ. Proc., § 437c, subd. (q).)

GPM presents one set of separate statement facts to support this motion. “ ‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ ” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).)

It is not necessary for the Court to determine whether GPM has met its initial burden on summary judgment because there are clear triable issues of material fact. As shown above, there is a conflict in the evidence as to whether the April 2017 repaving by GPM altered the relative positions of the parking lines relative to the wheel stops. (See also Code Civ. Proc., § 437c, subd. (c) [“summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact”].) This evidence is disputed by plaintiff’s expert and by documentary evidence.

Accordingly, GPM’s motion for summary judgment will be denied.