Motion for Summary Judgment and or Adjudication

Cal. Super. - 2nd Dist.January 24, 2019

123 23561 378401583 562400020067960 113454 21905 89 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 08:20:00 AM JUDICIAL OFFICER PRESIDING: Jeffrey Bennett COUNTY OF VENTURA VENTURA DATE: 04/05/2021 DEPT: 21 CLERK: Jacqueline Flores REPORTER/ERM: CASE NO: 56-2019-00524183-CU-PA-VTA CASE TITLE: Schweissinger vs. Lane CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Auto EVENT TYPE: Motion for Summary Judgment and/or Adjudication MOVING PARTY: CROWN DODGE CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication Memorandum of Points and Authorities in Support thereof, 06/23/2020 STOLO APPEARANCES STOLO DANIEL W. JOHNSON, counsel, present for Plaintiff(s). Donald R Wood, counsel, present for Defendant(s). Stolo At 08:44 a.m., court convenes in this matter with all parties present as previously indicated. Attorney Kelly Kenney CourtCall appearing for Defendant(s). Attorney Karina Villa appearing for Defendant(s). Counsel have received and read the court's written tentative ruling. Matter submitted to the Court with argument. The Court finds/orders: Defendant Crown Dodge's Motion for Summary Judgment or Alternatively Summary Adjudication: Denied in its entirety. For purposes of this motion only, the court finds: Proposed UMFs 1, 2, 5, 6 and 9-12 are undisputed. Proposed UMFs 3, 4 and 8 are disputed, but nonetheless established. Proposed UMF 7 is disputed, but not established as a triable issue of material fact exists regarding it. Crown Dodge's evidentiary objection Nos. 1 and 13 to the deposition testimony of Kyle Folk are overruled. The court need not rule on the remainder of Crown Dodge's evidentiary objections as they do not affect the outcome of the current motion. See Cal. Civ. Pro. §437c(q) ("In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.") The court grants Crown Dodge's request for judicial notice of plaintiffs' complaint and the Doe amendment thereto. There is no statutory basis for taking judicial notice of the deposition testimony Crown Dodge has requested. Crown Dodge has moved for summary judgment or in the alternative summary adjudication. It has VEN-FNR-10.03 MINUTE ORDER DATE: 04/05/2021 Page 1 DEPT: 21 CASE TITLE: Schweissinger vs. Lane CASE NO: 56-2019-00524183-CU-PA-VTA submitted a separate statement in support of its motion which does not comply with the rules. Issue One to be summarily adjudicated is not listed the same in both its notice of motion and its separate statement. See Cal. Rule Court, Rule 3.1350(b). Issue One as stated in its separate statement, cannot properly be the grounds for summary adjudication. See Cal. Civ. Pro. §437c(f)(1). It is more appropriately the grounds for a demurrer or a motion for judgment on the pleadings. With respect to Crown Dodge's motion for summary judgment, the summary judgment standard is as follows: first, the party moving for summary judgment always bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. Thus, in defendant's motion for summary judgment, it bears the burden of persuading the court that one or more elements of plaintiffs' cause of action cannot be established or that there is a complete defense thereto. Second, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Thus, in order to shift the burden of production to the plaintiff, defendant is required to produce evidence showing the nonexistence of some element of the claim. Third, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. Thus, here, where defendant moves for summary judgment against a party who bears the burden of proof at trial, he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not. Aguilar v Atlantic Richfield Co. (2001) 25 Cal.4th 826. "[A]ll material facts must be set forth in the separate statement. This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist. Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement." United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 (internal citations and quotes omitted). Crown Dodge has not met its initial burden of demonstrating one or more elements of plaintiffs' cause of action cannot be established or that there is a complete defense thereto. Crown Dodge argues that plaintiffs will not be able to demonstrate it is vicariously liable for the actions of co-defendant Lane or that it is liable pursuant to CA Vehicle Code §17150. For the sake of argument and purposes of this motion only, assuming that both of Crown Dodge's contentions are true, it still has not met its initial burden. Fundamentally, neither the facts established in its separate statement nor the allegations contained in the operative complaint or Doe amendment thereto establish that plaintiffs' first and second causes of action are based solely upon the vicarious liability theory Crown Dodge attempts to address or CA Vehicle Code §17150. As such, Crown Dodge's motion for summary judgment fails. To the extent Crown Dodge has properly stated an alternative request for summary adjudication, it fails for the same reason. Trial date of 10/18/2021 is confirmed. Notice to be given by Moving Party. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 04/05/2021 Page 2 DEPT: 21