SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 2, Honorable Kevin E. McKenney, Presiding Naomi Matautia, Courtroom Clerk Lisa Brown, Court Reporter 191 North First Street, San Jose, CA 95113 Telephone: 408. 882.2120 To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS DATE: Thurs, Feb. 06, 2014 TIME: 9:00 A.M. The prevailing party must prepare an order in compliance with Rule of Court 3.1312. (SEE RULE OF COURT 3.1312)
LINE # CASE # CASE TITLE RULING LINE 1 112CV221763 Cabral v. Silver Creek OEXs. Served? Hospitality LINE 2 110CV188848 Austiaj Limited Click “LINE 2” for tentative ruling. Partnership v. G. Parineh LINE 3 113CV242022 Wells Fargo Bank v. Click “LINE 3” for tentative ruling. Device Dynamics Incorp. LINE 4 113CV247996 Terra Bella Communities Click “LINE 4” for tentative ruling. v. California Dept. of Industrial Relations LINE 5 112CV226097 Mui v. BTM Fitness Click “LINE 5” for tentative ruling. LINE 6 112CV238025 Reyes v. Country Club Click “LINE 6” for tentative ruling. Villa Shopping Center LINE 7 112CV237620 Demello v. San Jose Please appear for brief discussion. Airport Garden Hotel LINE 8 113CV256552 Lenthor Engineering v. Off calendar. Crossfiber, Inc. LINE 9 111CV212497 Capital One Bank v. Claim of exemption. No financial statement. Truong Claim likely denied. LINE 10 113CV252629 First SBF Holding v. Motion to abate is denied. There is no Garvani & Company evidence that plaintiff is conducting “intrastate” business. LINE 11 113CV248394 National Collegiate Off calendar Student Loan v. Lazo, et al LINE 12 1113CV258452 Symetra Assigned Benefits Off calendar v. Wilder LINE 13 114CV258568 Chang v. Biosuccess Off calendar Biotech, et al LINE 14 113CV247926 Leadfactors v. Cisco Syst. Motion for pro hac vice granted. Please prepare and present order. LINE 15 LINE 16 SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 2, Honorable Kevin E. McKenney, Presiding Naomi Matautia, Courtroom Clerk Lisa Brown, Court Reporter 191 North First Street, San Jose, CA 95113 Telephone: 408. 882.2120 To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS LINE # CASE # CASE TITLE RULING LINE 17 LINE 18 LINE 19 LINE 20 LINE 21 LINE 22 LINE 23 LINE 24 LINE 25 LINE 26 LINE 27 LINE 28 LINE 29 LINE 30 LINE 31 LINE 32 LINE 33 LINE 34 LINE 35 LINE 36 LINE 37 LINE 38 LINE 39 LINE 40 Calendar line 1
- oo0oo -
Calendar line 2
Case Name: Austiaj Limited Partnership, et al. v. Guiv Parineh, et al.
Case No.: 1-10-CV-188848
Demurrer to the second amended cross-complaint (“SACC”) by cross-defendants Austiaj Limited Partnership (“ALP”), Austiaj Parineh (“Austiaj”), Hormoz Parineh (“Hormoz”), Khashayar Parineh (”Khashayar”), and HAK Ventures, LLC (“HAK”) (collectively “cross-defendants”)
Cross-complainants Guiv Parineh’s (“cross-complainant”) request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].)
HAK’s demurrer to the first (intentional misrepresentation), second (fraud), and third (negligent misrepresentation), seventh (declaratory relief), eighth (accounting), ninth (involuntary trust of wrongful gain), tenth (financial elder abuse), and eleventh (breach of contract”) causes of action is OVERRULED as these claims are not pled against it.
Austiaj, Hormoz, and Khashayar’s demurrer to the eighth (accounting), ninth (involuntary trust of wrongful gain), and eleventh (breach of contract) causes of action is OVERRULED since these causes of action are not pled against them.
ALP, Austiaj, Hormoz, and Khashayar’s demurrer to the first cause of action for intentional misrepresentation for failure to state sufficient facts is OVERRULED. (See Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) Cross-complainant’s allegations are specifically pled. (SACC, ¶¶ 18, 20-22; see Gil v. Bank of Am., N.A. (2006) 138 Cal.App.4th 1371, 1381; Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645.) Cross-complainant alleges knowledge of falsity and justifiable reliance. (SACC, ¶¶ 23-25.) The allegations of damages are sufficient. (Id., ¶¶ 18, 29, and p. 24:27-28.)
ALP, Austiaj, Hormoz, and Khashayar’s demurrer to the second cause of action for fraud (suppression of material fact) is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. (See Boschma v. Home Loan Ctr., Inc. (2011) 198 Cal.App.4th 230, 248.) Cross-complainant’s allegations are specifically pled as to the misrepresentations, there are allegations of knowledge of falsity and justifiable reliance, and the damage allegations are sufficient. (SACC, ¶¶ 31, 33- 35, 37-40.) However, one of the elements of a cause of action for fraud and deceit based on concealment is that “the defendant must have been under a duty to disclose the fact to the plaintiff.” (Boschma, supra, 198 Cal.App.4th at p. 248.) Cross-complainant has not alleged a duty.
ALP, Austiaj, Hormoz, and Khashayar’s demurrer to the third cause of action for negligent misrepresentation for failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. The elements of a fraud claim for negligent misrepresentation are the following: (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity (or “scienter”); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Philipson & Simon, supra, 154 Cal.App.4th at p. 363.) Cross-complainant alleges knowledge of falsity and justifiable reliance. (SACC, ¶¶ 47-51.) Cross-complainant alleges that the misrepresentations were made without reasonable grounds for believing them to be true. (Id., ¶ 48.) However, cross-complainant has not alleged why cross- defendants owed any legal duty. (See Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864 [“responsibility for negligent misrepresentation rests upon the existence of a legal duty”].)
ALP, Austiaj, Hormoz, and Khashayar’s demurrer to the fourth cause of action for conspiracy for failure to state sufficient facts is OVERRULED. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. . . . It must be activated by the commission of an actual tort.” (Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11.) The SACC sufficiently alleges intentional misrepresentation to serve as the predicate underlying tort necessary for a conspiracy cause of action against these cross-defendants.
HAK’s demurrer to the fourth cause of action for conspiracy for failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. The first three causes of action are not alleged against HAK. As a result, there is no underlying tort to maintain this claim against HAK. (See id.)
Cross-defendants’ demurrer to the fifth cause of action for equitable indemnity for failure to state sufficient facts is OVERRULED. “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass’n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.) Here, the SACC sufficiently alleges that if cross-complainant is held liable to cross-defendants in the principal action, such liability arises from cross-defendants’ acts. (SACC, ¶¶ 61-62.)
Cross-defendants’ demurrer to the sixth cause of action for contribution for failure to state sufficient facts is OVERRULED. Cross-defendants’ reliance on West v. Super. Ct. (1994) 27 Cal.App.4th 1625, 1633, is misplaced since the claim is not based on implied contractual indemnity.
ALP, Austiaj, Hormoz, and Khashayar’s demurrer to the seventh cause of action for declaratory relief for failure to state sufficient facts is OVERRULED. This claim is not “an unnecessary restatement” of the fifth and sixth causes of action because cross-complainant seeks a court order declaring the respective rights, liabilities, and duties of the parties. (See SACC, p. 25:25-26.)
ALP’s demurrer to the eighth cause of action for an accounting for failure to state sufficient facts is OVERRULED. The elements for a claim for accounting are: (1) a relationship between the parties that requires an accounting; and (2) a balance due from the defendant to the plaintiff that can only be ascertained by an accounting. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) Cross-complainant alleges he was a former limited partner of ALP, and is entitled to an accounting of funds ALP received. (SACC, ¶ 75.)
ALP’s demurrer to the ninth cause of action for involuntary trust of wrongful gain for failure to state sufficient facts is OVERRULED. A constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. [Citations.]” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990; see Campbell v. Super. Ct. (2005) 132 Cal.App.4th 904, 920.) Cross-complainant pleads all the necessary elements for a constructive trust: (1) the res is the trust; (2) cross-complainant is entitled to funds in the trust as the former trustee; and (3) ALP gained the res through misrepresentations. (SACC, ¶ 81.)
ALP, Austiaj, Hormoz, and Khashayar’s demurrer to the tenth cause of action for financial elder abuse for failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. In order to state a cause of action for financial elder abuse, cross- complainant must allege with particularity that: (1) the victim was an “elder” at the relevant time; (2) ALP, Austiaj, Hormoz, and Khashayar took, secreted, appropriated or retained, or assisted another in taking, secreting, appropriating or retaining, real or personal property of the elder; and (3) wrongful use of the property or intent to defraud the elder. (Welf. & Inst. Code, § 15610.30; see Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790 (“[T]he general rule [is] that statutory causes of action must be pleaded with particularity.”).) Cross-complainant alleges he was 65 years old when he was induced to transfer the money he was holding as trustee. (SACC, ¶ 83.) However, there is no allegation that any of his “real or personal property” was taken.
ALP’s demurrer to the eleventh cause of action for breach of contract for failure to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.1 Cross-complainant alleges that he “entered into an oral joint venture with his brother.” (SACC, ¶ 89.) There is no allegation that ALP is a party to the “oral joint venture.” (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [breach of contract requires a pleading of (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff].)
ALP’s demurrer to the eleventh cause of action for breach of contract based on uncertainty is OVERRULED. An uncertainty demurrer is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty should only be sustained when the complaint is so bad that the defendant cannot reasonably respond. (Id.) Here, the breach of contract claim is certain enough to allow ALP to understand the nature of the allegations, and the theory of liability in order to fashion an appropriate response.
- oo0oo -
1 ALP argues that the SACC does not indicate whether the contract is written or oral. An action “founded upon a contract” is subject to demurrer if “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10, subd. (g).) Thus, “[t]o state a cause of action for breach of contract . . . , the complaint must indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. S. Pac. Transp. Co. (1985) 166 Cal.App.3d 452, 458-59.) ALP did not indicate in its notice that it was demurring under Code of Civil Procedure section 430.10, subdivision (g). Based on this procedural deficiency, the Court has not considered this ground for demurrer. Calendar line 3
Case Name: Wells Fargo Bank, N.A. v. Device Dynamics Inc. dba HGM Device Dynamics, et al. Case No.: 1-13-CV-242022
Cross-Defendants Shahreyar Nezaratyzadeh and Michael Meindorfer (collectively, “Cross-Defendants”) demur to the first amended cross-complaint (“FACC”) filed by defendant/cross-complainant Device Dynamics Incorporated (“Device”).
Cross-Defendants’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)
Cross-Defendants’ demurrer to the FACC on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.
Cross-Defendants’ demurrer to the first (Fraud) and fourth (Breach of Fiduciary Duty) causes of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. Contrary to Cross-Defendants’ assertions, it does not appear “clearly and affirmatively” from the FACC that these claims are time-barred. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)
Cross-Defendants’ demurrer to the second cause of action (Breach of Written Contract [Express Contractual Indemnity]) on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. The right of indemnity may “arise from either of two general sources: First, it may arise by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances. Second, it may find its source in equitable considerations brought into play either by contractual language not specifically dealing with indemnification or by the equities of the particular case.” (E.L. White v. Huntington Beach (1978) 21 Cal. 3d 497, 506.) Here, the obligation to indemnify and defend set forth in Section 7.6 of the Merger Agreement is limited to the specific dispute referenced in the preceding sentences, i.e., that involving Kristine Lawton, and thus provides no basis for indemnification in the underlying action by Wells Fargo Bank, N.A.
Cross-Defendants’ demurrer to the third cause of action (Declaratory Relief) on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. “To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: (1) a proper subject for declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party’s] rights or obligations.” (Wilson & Wilson v.City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.) Generally, declaratory relief is available only to parties to a contract. (See e.g., Blank v. Kirwan (1985) 39 Cal. 3d 311, 331; see also Code Civ. Proc., § 1060 [“Any person interested under a contract … may … bring an original … for a declaration of his rights and duties in the premises, including a determination of any question or validity arising under such instrument or contract”].) None of the subjects pleaded in the third cause of action provide a basis for declaratory relief. As articulated above, there is no basis for express indemnity against Nezaratyzadeh in the Merger Agreement; thus, Device’s attempt to re-cast the deficient indemnification claim as one for declaratory relief is unavailing. Further, Device’s request for disgorgement of profit and consideration obtained on account of the alleged fraud is redundant to that claim. Moreover, declaratory relief only “operates prospectively, and not merely to the redress of past wrongs.” (Babb v. Superior Court (1971) 3 Cal. 3d 841, 848.)
- oo0oo - Calendar line 4
Case Name: Terra Bella Communities, Inc. v. California Department of Industrial Relations, Division of Labor Standards Enforcement
Case No.: 1-13-CV-247996
Demurrer to the first amended petition for writ of administrative mandate by respondents California Department of Industrial Relations, Division of Labor Standards Enforcement and Labor Commissioner of the State of California (collectively “respondents”)
California Rules of Court, rule 3.1113(f), states that a memorandum exceeding ten pages must include a table of contents and a table of authorities. Petitioner Terra Bella Communities, Inc. dba Terra Bella Communities (“Terra Bella”) filed a fifteen page opposition without a table of contents or a table of authorities. Terra Bella is directed that future filings must comply with all applicable statutes and rules.
Respondents’ demurrer to the amended petition based on uncertainty is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Respondents cannot file an appropriate response to the 30 page amended petition because Terra Bella failed to use paragraph numbers. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Respondents’ assertion that the amended petition contains a legal brief is not an appropriate argument for a demurrer. If respondents believe the amended petition contains improper materials, they may file a motion to strike with citation to applicable authority.
Respondents’ demurrer to the amended petition for failure to state sufficient facts is OVERRULED. The amended petition is clear that the claims are against respondents. Terra Bella alleges it did not receive a fair trial, there was an abuse of discretion, and the evidence does not support respondents’ findings.
Respondents’ argument that the amended petition is a sham lacks merit. There is nothing in the amended petition that is inconsistent with the original petition. (See Epstein v. Stahl (1959) 176 Cal.App.2d 53, 65.) Indeed, respondents acknowledge in their memorandum of points and authorities that the amended petition still includes references to Terra Bella’s failure to maintain workers’ compensation insurance. (Mtn. at p. 7:1-9.)
- oo0oo - Calendar line 5
Case Name: So Lan Mui v. BTM Fitness, LLC dba Anastasia’s Club Fit Case No.: 1-12-CV-226097
Motion for Summary Judgment, or in the Alternative, Summary Adjudication by defendant BTM Fitness, LLC dba Anastasia’s Club Fit
Evidence The request for judicial notice by defendant BTM Fitness, LLC dba Anastasia’s Club Fit (“Defendant”) is GRANTED. (See Evid. Code § 452, subd. (d); see also Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1055 [a court may take judicial notice that pleadings were filed containing allegations and arguments, but a court may not take judicial notice of the truth of the facts alleged].)
Defendant’s evidentiary objections are SUSTAINED IN PART and OVERRULED IN PART. Objection Nos. 3, 6, 7, 9, 11, 13, 14, 15, 16, 17, and 22 are sustained. Objection Nos. 1, 2, 4, 5, 8, 10, 12, 18, 19, 20, and 21 are overruled. The evidentiary objections submitted by plaintiff So Lan Mui (“Plaintiff”) are SUSTAINED IN PART and OVERRULED IN PART. Objection No. 1 is overruled. Objection No. 2 is sustained. Motion for Summary Judgment
On November 11, 2013, Defendant filed the motion presently before the court, a motion for summary judgment or, in the alternative, summary adjudication to the complaint. (Code Civ. Proc. § 437c.) However, the only claim alleged against Defendant is a cause of action for negligence. Thus, the court treats the request as a single motion for summary judgment.
“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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 that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)
“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. In short, to recover on a theory of negligence, plaintiffs must prove duty, breach, causation, and damages.” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 875 [internal citation and quotation marks omitted].)
With respect to the negligence claim, Defendant makes the following arguments on summary judgment: (1) Paul John Ouellet, Plaintiff’s husband (“Decedent”), expressly waived liability arising from Defendant’s negligent conduct; and (2) the doctrine of assumption of the risk provides a complete defense.
1. Express Waiver and Release
“A written release may exculpate a tortfeasor from future negligence or misconduct. To be effective, such a release must be clear, unambiguous, and explicit, in expressing the intent of the subscribing parties. The release need not achieve perfection. Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. The determination of whether a release contains ambiguities is a matter of contractual construction. An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence. If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1485 [internal quotation marks and citations omitted].)
Since Decedent signed a release and waiver when he joined the health club, which is clear and unambiguous on its face, Defendant argues that such a release defeats Plaintiff’s claim for negligence. (See Defendant’s Separate Statement of Undisputed Facts at Nos. 1 and 3; see also Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1358 [appellate court held that the release unambiguously, clearly, and explicitly released defendant from liability for any injury plaintiff suffered on the club’s premises, whether or not he was using exercise equipment at the time].) However, Plaintiff’s negligence claim is based on a breach of a statutory duty imposed by Health & Safety Code section 104113 which pertains to health studios acquiring, maintaining, and training personnel in the use of an automatic external defibrillator (“AED”). Plaintiff alleges that Defendant breached this statutory duty in failing to train staff and have a functioning defibrillator on the health club premises. Since the negligence claim is based on a violation of Health & Safety Code section 104113 which was the proximate cause of Plaintiff’s injuries, the court finds that the waiver and release of liability does not bar this action. (See Civ. Code § 1668; see also Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1081-1082, 1084-1085, 1087-1088 [appellate court reversed trial court ruling with respect to negligence per se claim alleging violation of Health and Safety Code provisions].)
2. Primary Assumption of the Risk
“The common law doctrine of primary assumption of risk has been used a complete defense in personal injury lawsuits arising from any particular sports activity that is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature. Thus, the doctrine has been applied specifically to sports and sport-related activities involving physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.” (Peart v. Ferro (2004) 119 Cal.App.4th 60, 71-72 [internal citation and quotation marks omitted].) The “application of the primary assumption of risk doctrine is a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim. Whether a given defendant owed a legal duty to protect a plaintiff from a particular risk of harm, or whether instead the primary assumption of risk doctrine is to be applied, is a question of law that depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity.” (Peart v. Ferro, supra, 119 Cal.App.4th at p. 72 [internal citations and quotation marks omitted].)
On summary judgment, the undisputed facts show that Decedent suffered a cardiac arrest while playing racquetball at Defendant’s health club. (See Defendant’s Undisputed Fact No. 4; Plaintiff’s Additional Fact No. 4.) In opposition, Plaintiff concedes that Defendant did not owe a duty to protect Decedent from suffering a sudden cardiac arrest. (See OPP at p. 15.) Plaintiff also admits that Defendant did nothing to increase the risk that Decedent would suffer a cardiac arrest. (Ibid.) Instead, Plaintiff argues that Defendant failed to comply with statutory duties and failed to take reasonable steps to protect Decedent, a club member, against the unreasonable risks of physical harm. However, a similar argument was raised in Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, cited by Defendant, where the Sixth District stated that there is “no authority for the proposition that a sports facility operator has a duty to reduce the effects of an injury that is an inherent risk in the sport, or to increase the chances of full recovery of a participant who has suffered such a sports-related injury.” (Id. at pp. 334-335.) Here, Decedent suffered his injuries as a result of playing racquetball. Thus, Decedent assumed the risk of cardiac arrest by engaging in strenuous physical activity. As the moving papers point out, Defendant’s compliance with the AED statute does not dispel the risks voluntarily assumed by the Decedent. Furthermore, the opposition fails to cite any legal authority to impose a duty under these circumstances. Therefore, the court finds that the primary assumption of the risk doctrine bars Plaintiff’s negligence claim.
Accordingly, Defendant’s motion for summary judgment is GRANTED.
- oo0oo - Calendar line 6
Case Name: Jonathan Reyes v. Country Club Villa Shopping Center, LLC
Case No.: 1-12-CV-238025
Motion for Summary Judgment by cross-defendant Silicon Valley Paving, Inc. On November 19, 2013, cross-defendant Silicon Valley Paving, Inc. (“SVP”) filed the motion presently before the court, a motion for summary judgment to the cross-complaint. (Code Civ. Proc. § 437c.) SVP asserts that its liability under the cross-complaint depends on whether Plaintiff can prevail on his complaint for premises liability. SVP argues that that Plaintiff’s claim for premises liability is barred by the trivial defect doctrine and judgment should be granted as a matter of law. “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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 that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)
In moving for summary judgment, SVP argues that the size of the crack in the parking lot constitutes a trivial defect.
“An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed. The law imposes no duty on a landowner— including a public entity—to repair trivial defects, or to maintain [its property] in an absolutely perfect condition. [A] property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 [internal citations and quotation marks omitted].)
“The decision whether a crack or other defect in a walkway is dangerous does not rest entirely on the size of the depression. Although the size of a crack or pothole is a pivotal factor in the determination, a tape measure alone cannot be used to determine whether the defect was trivial. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate. Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect. The court should also consider the weather at the time of the accident, a plaintiff’s knowledge of the conditions of the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the
risk of injury.” (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at pp. 566-567 [internal citations and quotation marks omitted].)
“The trivial defect doctrine is not an affirmative defense. It is an aspect of a landowner’s duty which a plaintiff must plead and prove. The doctrine permits a court to determine whether a defect is trivial as a matter of law, rather than submitting the question to a jury. Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury— the issue is a question of law, properly resolved by way of summary judgment. The rule which permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property. … [A] landowner is not an insurer of the safety of its users.” (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at p. 567 [internal citations omitted].)
“The legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner.” (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at pp. 567-568.)
In moving for summary judgment, SVP provides the deposition testimony of Maria Zamudio (“Ms. Zamudio”), Plaintiff’s mother, who testified that the shopping cart struck a lump of gravel measuring approximately ¼ inch above the surface of the parking lot. (See SVP’s Separate Statement of Undisputed Facts at Nos. 3-4.) Several California decisions have found height differentials of up to one and one-half inches trivial as a matter of law. (See Barrett v. Claremont (1953) 41 Cal.2d 70, 74 [in the absence of aggravating conditions, differential of less than half an inch deemed trivial]; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [elevation difference of under half an inch]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4 [same].) However, as stated above, size alone is not determinative of whether the crack presents a dangerous condition. It is just one of several factors for determining whether a given defect may be deemed trivial as a matter of law. The court must also consider the nature and quality of the defect, the time of day and lighting conditions when the accident occurred, and whether there is evidence anyone else has been injured by the same defect. (See Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at p. 568; Fielder, supra, 71 Cal.App.3d at p. 734.)
With respect to these additional factors, Ms. Zamudio testified during deposition that there were lights in the parking lot and that she could see where she was going. (See SVP’s Separate Statement of Undisputed Facts at No. 6.) Even though SVP’s photographs of the scene are not ideal, they do not show any jagged or uneven edges that might create a dangerous condition. (Id. at No. 4.) To defeat the motion, Plaintiff offers the following disputed facts in opposition to the motion:
The uplifted asphalt debris existed for at least two months prior to the incident; The area of the parking lot where the incident occurred was dimly lit;
SVP had actual notice of the condition of the parking lot because they performed work in the shopping center approximately twelve days before the incident; and The defect in the parking lot is not a trivial defect as SVP made repairs to it after the incident occurred.
(See OPP at p. 1; Plaintiff’s Disputed Fact Nos. 3, 5, and 6.)
However, Plaintiff fails to support its opposition with any evidence to defeat the motion. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing].) In fact, the only evidence cited in opposition pertains to the deposition testimony of Ms. Zamudio attached to the moving papers. (See Plaintiff’s Disputed Fact No. 6.) Even though Ms. Zamudio testified that the shopping center was poorly lit, shortly thereafter she admitted that she could see where she was going. (See SVP’s Separate Statement of Undisputed Facts at No. 6.) Thus, the court finds that Plaintiff has not raised any triable issue of fact to show that a dangerous condition existed at the time of the incident. Therefore, the trivial defect doctrine applies.
Accordingly, SVP’s motion for summary judgment is GRANTED.
- oo0oo -
Calendar line 7
- oo0oo -
Calendar line 8
- oo0oo -
Calendar line 9
- oo0oo -
Calendar line 10
- oo0oo -
Calendar line 11
- oo0oo -
Calendar line 12
- oo0oo -
Calendar line 13
- oo0oo -
Calendar line 14
- oo0oo -
Calendar line 15
- oo0oo -
Calendar line 16
- oo0oo --
Calendar line 17
- oo0oo -
Calendar line 18
- oo0oo -
Calendar line 19
- oo0oo -
Calendar line 20
- oo0oo -
Calendar line 21
- oo0oo -
Calendar line 22
- oo0oo -
Calendar line 23
- oo0oo -
Calendar line 24
- oo0oo -
Calendar line 25
- oo0oo -
Calendar line 26
- oo0oo –
Calendar line 27
- oo0oo -
Calendar line 28
- oo0oo -
Calendar line 29
- oo0oo -
Calendar line 30
- oo0oo –
Calendar line 31
- oo0oo –
Calendar line 32
- oo0oo –
Calendar line 33
- oo0oo –
Calendar line 34
- oo0oo –
Calendar line 35
- oo0oo -
Calendar line 36
- oo0oo -
Calendar line 37
- oo0oo -
Calendar line 38
- oo0oo -
Calendar line 39
- oo0oo -
Calendar line 40
- oo0oo -