Judge David A. Hoffer, Case 30-2020-01173072 2023-07-31 Tentative Ruling

Judge: David A. Hoffer, Case: 30-2020-01173072, Date: 2023-07-31 Tentative Ruling

The Motion for Summary Judgment brought by Defendant Trang Dang is GRANTED pursuant to Code of Civil Procedure section 437c.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5^th 680, 687.)

“The general rule in California is that ‘[e]veryone is responsible…for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4^th 764, 771, citing Civ. Code §1714, subd. (a).) “In other words, ‘each person has a duty to use ordinary care and ‘is liable for injuries caused by his failure to exercise reasonable care in the circumstances…’” (Cabral, supra, 51 Cal.4^th at 771).

Here, the undisputed evidence demonstrates Defendant did not breach her general duty to use ordinary care “in the management of her property or person.” (Civ. Code §1714, subd. (a).) Similarly, the undisputed evidence demonstrates Defendant was not a cause of Plaintiffs’ injuries.

The evidence indicates the accident which injured Plaintiffs was caused by two teenagers, who were shooting fireworks in the back alley between Defendant’s and Plaintiffs’ property. (¶7 of Purcell Declaration and Exhibit B thereto, Deborah MacLeod Deposition: 16:20-17:3; See also ¶8 of Purcell Declaration and Exhibit C thereto, Jeffrey MacLeod Deposition: 16:6-15.) Additionally, Plaintiff Deborah MacLeod testified that she never saw Defendant Trang Dang use fireworks. (¶7 of Purcell Declaration and Exhibit B thereto, Deborah MacLeod Deposition: 40:2-4.)

Notably, this evidence is consistent with the allegations in the Complaint, which asserts that two young men who had attended a party at Defendant’s property, “were lighting illegal fireworks in the alley behind our backyard which was located next door to defendant’s home.” (ROA No. 2.)

Given these facts demonstrate Defendant did not breach a duty to Plaintiffs nor cause their injury, summary judgment is appropriate.

Within the opposition to this motion, Plaintiffs suggest liability should attach to Defendant on the basis the perpetrators are relatives of Defendant and on the basis the illegal fireworks used were stored on Defendant’s property. (See Deborah MacLeod Declaration.)

With respect to the assertion the perpetrators are relatives of Defendant, the statement is made on information and belief. (Opposition: 2:7-8.) “An affidavit based on ‘information and belief’ is hearsay and must be disregarded [citation removed] and it is ‘unavailing for any purpose’ whatsoever.” (Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204). Moreover, plaintiffs cite no authority to support the proposition that a person is responsible for the conduct of another just because the other is somehow related to the person.

Similarly, the statement that “[t]he fireworks were stored and accessed from Ms. Dang’s garage and were used on May 18, 2020 by Derek Bui and Khang Vu which caused the fire” is utterly lacking foundation and personal knowledge. (Opposition: 2:4-7) (i.e., the statement contains no information as to how plaintiffs came to this knowledge). The same is true for Plaintiffs’ assertion Defendant “knew that the fireworks stored at the property could be and were accessed by anyone who wanted to use them.” (Opposition: 2:20-21.)

Lastly, it is worth noting that, as the allegations in the Complaint do not allege a negligent act by Defendant, the Court could convert this motion to a motion for judgment on the pleadings and grant it on that basis. “A defendant’s motion for summary judgment necessarily includes a test of the sufficiency of the complaint.” (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4^th 1110, 1117.) “When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true.” (Id. at 1117-1118.) “Because the time for a demurrer had passed by the time the [Defendant’s] motion was filed, we treat the motion as a motion for judgment on the pleadings.” (Id. at 1118). Here, the pleadings, like the evidence, establish wrongful conduct only by other persons – not defendant – and thus the court grants the summary judgment, whether viewed as a motion for summary adjudication or a motion for judgment on the pleadings.

Defendant is ordered to give notice of this ruling and to provide a proposed order to the court.