Judge: Barbara M. Scheper, Case: BC654003, Date: 2024-10-24 Tentative Ruling
Case Number: BC654003 Hearing Date: October 24, 2024 Dept: 30
Calendar No.
Cho vs. CKE Restaurants Holdings
Inc., et. al., Case No. BC654003
Tentative Ruling re: Plaintiff’s Motion for Summary Judgment, or
in the alternative, Summary Adjudication of Issues
Min Sun Cho
(Plaintiff) moves for summary judgment, or alternatively summary adjudication,
against Haul-Away Rubbish Service Co. (Defendant) as to Plaintiff’s causes of
action for private nuisance and negligent infliction of emotional distress.
Defendant opposes Plaintiff’s motion. Summary judgment is denied.
A motion for summary judgment or adjudication
allows a determination as to whether an opposing party can show evidentiary
support for a claim or defense, and if not, enables an order of summary
dismissal without the need for trial. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure Section 437c, subdivision (c) “requires the trial judge to grant
summary judgment if all the evidence submitted, and ‘all inferences reasonably
deducible from the evidence’ and uncontradicted by other inferences or
evidence, show that there is no triable issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
As to each claim as framed by the complaint, a
moving plaintiff “has met his or her burden of showing that there is no defense
to a cause of action if that party has proved each element of the cause of
action entitling the party to judgment on the cause of action.” (Code Civ. Proc.,
§ 437c, subd. (p)(1).) Courts “liberally construe the evidence in support of
the party opposing summary judgment and resolve doubts concerning the evidence
in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.) Once the plaintiff has met that burden, the burden shifts
to the opposing defendant “to show that a triable issue of one or more material
facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc.,
§ 437c, subd. (p)(1).) To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 166.)
Procedural
Defects
Defendant argues that Plaintiff’s motion is procedurally defective.
California Rule of Court 3.1350(b) provides that “a motion for summary
adjudication may make reference to and depend on the same evidence submitted in
support of the summary judgment motion.” However, if summary adjudication is
sought, “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.”
(Rules of Court, rule 3.1350(b).) Plaintiff did not include this information in
his notice of motion. Nor did Plaintiff identify each cause of action in his
Separate Statement as required by rule 3.1350(d). Accordingly, the Court treats
this motion as a motion for summary judgment only.
Discussion
Immediately
after moving into a new residence, Plaintiff started experiencing loud noises
every morning at approximately 4 a.m. (Cho Decl. ¶ 4.) Plaintiff determined the
source to be a nearby Carl’s Jr. restaurant’s trash collection. (Ibid.) Plaintiff
alleges that he experienced physical symptoms due to the noise which caused him
to lose his job. (Id. ¶¶ 33–34.) Plaintiff has brought claims for
private nuisance and negligent infliction of emotional distress.
Plaintiff has not met
his burden with respect to his private nuisance claim.
Plaintiff
moves for summary adjudication as to his claim for private nuisance. A nuisance
is anything that is “injurious to health, including, but not limited to, the
illegal sale of controlled substances, or is indecent or offensive to the
senses, or an obstruction to the free use of property, so as to interfere with
the comfortable enjoyment of life or property.” (Civ. Code, § 3479.) A private
nuisance is one which does not affect a considerable number of persons
simultaneously. (Id., § 3481.)
To
prevail on an action for private nuisance, a plaintiff must first prove an
interference with the use or enjoyment of their property. (Lynch v. Peter
& Associates, Engineers, Geologists, Surveyors, Inc. (2024) 325
Cal.Rptr.3d 265, 277.) Second, the plaintiff must show that the invasion is
substantial, causing the plaintiff substantial actual damage. (Ibid.)
Third, the interference must also be unreasonable, considering its nature,
duration, or amount. (Ibid.)
Plaintiff
has not met his burden with respect to every element. Plaintiff has shown an
interference with the use or enjoyment of his property. Defendant does not
dispute that it picked up trash from a dumpster 20 feet from Plaintiff’s
apartment in the early morning for almost a full year. (Cho. Decl., Ex. M.) The
noise from this activity disturbed Plaintiff’s sleep, an important use of his
property. (Id. ¶¶ 5–6.) Plaintiff has also presented evidence that
Defendant’s conduct was unreasonable. Los Angeles Municipal Code section 113.01
outlaws refuse collection before 6 a.m. absent a permit from the Board of
Police Commissioners. (Los Angeles Municipal Code, art. 3, § 113.01.)
Defendant’s conduct generated loud noise adjacent to a residential development
at a very early hour. (Cho. Decl. ¶ 5.) Additionally, this conduct continued
for months. (Id., Ex. M.)
However,
Plaintiff has not submitted evidence proving that the invasion was substantial.
To do so, Plaintiff must show that he suffered substantial actual damage.
Plaintiff has offered evidence that he suffered many physical symptoms related
to lack of sleep. (Id. ¶ 30.) But when alleging personal injury,
causation must be proven within a reasonable medical probability based on
competent expert testimony. (Jones v. Ortho Pharmaceutical Corp. (1985)
163 Cal.App.3d 396, 402.) Plaintiff has not presented any competent expert
testimony linking his physical symptoms to the conduct of Defendant. Without
such evidence Plaintiff is also unable to show that his lost wages were due to
Defendant’s conduct.
Plaintiff
argues that expert testimony is only required where causation is “beyond the
experience of laymen.” (Kline v. Zimmer (2022) 79 Cal.App.5th 123, 131.)
While losing sleep from loud noise is a relatable phenomenon, causation in the
present case is not as simple as, say, a car causing broken bones on impact
with a pedestrian. Expert testimony is required to sort out other potential
causes of Plaintiff’s symptoms and ensure that causation is properly
attributed. This is particularly the case when Plaintiff’s symptoms are as
varied as “fatigue, dizziness, headaches, stomach aches, high-blood pressure,
panic attacks, stress, anxiety, and fear.” (Cho. Decl. ¶ 30.) Thus, Plaintiff
has not offered proof of a substantial invasion, and summary adjudication is
denied as to this cause of action.
Plaintiff has not met
his burden with respect to his claim for negligent infliction of emotional
distress.
Plaintiff
moves for summary adjudication as to his claim for negligent infliction of
emotional distress. “Negligent infliction of emotional distress ‘is not an
independent tort, but the tort of negligence,’ to which
‘traditional elements of duty, breach of duty, causation, and damages apply.’ (Downey
v. City of Riverside (2024) 16 Cal.5th 539, 547.)
Here,
as discussed above, Plaintiff lacks adequate evidence of causation. To succeed
on his negligence claim, Plaintiff must show that Defendant caused his
injuries. Plaintiff has not offered competent expert testimony to make such a
showing. Additionally, where there is no personal, physical injury, a plaintiff
must show that they suffered serious emotional distress. (Molien v. Kaiser
Foundation Hospitals (1980) 27 Cal.3d 916, 928.) “[S]erious mental distress
may be found where a reasonable man, normally constituted, would be unable to
adequately cope with the mental stress engendered by the circumstances of the
case.” (Ibid.) Plaintiff has not presented such evidence. Thus, summary
adjudication is denied as to this cause of action as well.