Judge: Deborah C. Servino, Case: 30-2020-01150080, Date: 2022-07-29 Tentative Ruling



Hearing on plaintiff’s motion to quash subpoena off-calendar.  Notice of withdrawal of motion filed 7/14/2022.




Defendant Car Prep, Inc.’s (“Car Prep”) motion for summary judgment against Plaintiff Naim Hasan is granted.


Evidentiary Objections and Other Deficiencies


Plaintiff did not file an opposition.  However, Defendants Sukut Real Properties, LLC, Sukut Construction, LLC, Sukut Construction, Inc., Sukut Development, Inc., Sukut Solar, LLC, Suket Real Properties, Sukut Real Properties II, LLC, Sean P. McCoy, and Myron Sukut (“Defendants”) filed evidentiary objections and “response to Car Prep, Inc.’s separate statement of undisputed material facts” in opposition to Car Prep’s motion.


Defendants did not include a memorandum of points and authorities, which is required as part of an opposition to a summary judgment motion pursuant to California Rules of Court, rule 3.1350(e).  The memorandum filed in connection with any motion “must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).)


Even if the court were to consider Defendants’ separate statement as an opposition, there are significant problems with the papers. Aside from Defendants’ objection no. 1, which the court hereby overrules, the objections do not comply with California Rules of Court, rule 3.1354. (See ROA 332.) The objections do not “[q]uote or set forth the objectionable statement or material.” (Cal. Rules of Court, rule 3.1354(b)(3).)  In accordance with its discretion, the Court declines to rule on these objections.  (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [finding that the trial court did not abuse its discretion in declining to rule on evidentiary objections that violated the format rules in Rule 3.1354].)  


In addition, a number of exhibits appear to be attached to Defendants’ separate statement. (ROA 330.)  The exhibits should not have been attached to the separate statement.  (Cal. Rules of Court, rule 3.1350(e).)  Moreover, there is no declaration authenticating or laying a foundation for these exhibits.  The exhibits are thus inadmissible. Car Prep objected on these grounds. (ROA 336.) All of its objections are sustained.


Legal Standard


“[F]rom commencement to conclusion, the party moving for summary judgment 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.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “A prima facie showing is one that is sufficient to support the position of the party in question.”  (Id. at p. 851.)  A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action.  (Code Civ. Proc., § 437c, subd. (p)(2).)  The scope of this burden is determined by the allegations of the plaintiff’s complaint.  (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)


A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law.  (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.)  Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)  Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)




Plaintiff asserts negligence, premises liability, and negligent undertaking causes of action against Car Prep.


The elements of negligence are: “(1) a legal duty to use due care; (2) a breach of such legal duty; [and] (3) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  


The elements of premises liability claim are that: (1) the defendant owned/leased/occupied/controlled the property; (2) the defendant was negligent in the use or maintenance of the property; (3) the plaintiff was harmed; and (4) the defendant's negligence was a substantial factor in causing the plaintiff's harm. (CACI no. 1000; see Rowland v. Christian (1968) 69 Cal.2d 108; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 


“The existence and scope of duty are legal questions for the court.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36 [citing Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477].) “Liability founded upon a claim of negligence cannot exist unless a duty of care is owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member. [Citations.]” (Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1145 [citing Gomez v. Ticor (1983) 145 Cal.App.3d 622, 627].) 


“To establish a duty of care to a third person based on the negligent undertaking doctrine, a plaintiff must show: (1) the defendant undertook to render services to another; (2) the services were of the kind the defendant should have recognized as necessary for the protection of third persons; and (3) either (a) the defendant's failure to exercise reasonable care increased the risk of harm beyond what existed without the undertaking, (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) a harm was suffered because the other or third persons relied on the undertaking.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 83–84.)


In order to prevail on the three causes of action, Plaintiff must establish that Car Prep owed him a duty of care and breached that duty. The undisputed facts show that, aside from clearing space in the parking lot for the placement of a scissor lift (not owned, leased, or operated by Car Prep), Car Prep was not involved in the solar power installation project that ultimately led to Plaintiff’s accident. (Perkins Decl., at ¶¶ 8-14, 16-18; Exh. G; Perkins Depo., at pp. 112-113; Thornton Depo., at pp. 221-222; Car Prep’s Separate Statement of Undisputed Material Facts [“UMF”] 9-16.)  It did not employ Plaintiff, nor did it own, possess or control the Building’s rooftop at the time of the Incident. (Perkins Decl., at ¶¶ 8, 14, 16-18; Thornton Depo., at p. 222; UMF 13-16.)  It did not create or know about the allegedly defective skylight prior to Plaintiff’s fall. (Perkins Decl., at ¶¶ 4-6, 8; Exh. H; Thornton Depo., at pp. 56, 69, 81-82, 182, 214-215; Perkins Depo., at pp. 113-115; UMF 3-8.) Moreover, Car Prep took no affirmative acts affecting the safety of Plaintiff on the project. (Perkins Decl., at ¶¶ 16-18; UMF 15-17.)  Because Car Prep owed no duty to Plaintiff concerning the skylight or the solar installation project for which Plaintiff was hired, it cannot be held liable for Plaintiff’s injuries under any of the three causes of action asserted against it.


As a result, because the facts and evidence demonstrate that there are no triable issues of material fact with respect to the element of duty, Car Prep has met its prima facie burden. Having not filed an opposition, Plaintiff failed to meet his burden to show by reference to specific facts the existence of a triable issue as to the causes of action.  Defendants also have not shown by reference to specific facts the existence of a triable issues as to the causes of action.  Accordingly, Car Prep’s motion for summary judgment is granted.


No later than August 8, 2022, Car Prep shall electronically submit a proposed judgment.  Car Prep shall serve the proposed judgment on all parties. 


Car Prep shall give notice of the ruling.