Judge: Deborah C. Servino, Case: 30-2021-01181991, Date: 2022-09-09 Tentative Ruling
Defendant Dedicated Transportation Services, Inc.’s motion for summary judgment as to Plaintiff Jeanette Easter’s Complaint is granted.
Late-Filed Opposition
All opposition papers to a motion for summary judgment must be served on the moving party and filed with the court at least 14 days before the date set for hearing on the motion. (Code Civ. Proc., § 437c, subd. (b)(2).) A court has discretion to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for the late submission. (Mackey v. Board of Trustees v. California State Univ. (2019) 31 Cal.App.5th 640, 657; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)
On September 6, 2022, Plaintiff Jeanette Easter belatedly filed a document entitled “Opposition to motion for summary judgment and opposition in the alternative to summary adjudication of issues; memorandum of points and authorities in support of opposition; separate statement in support of opposition to motion for summary judgment or in the alternative summary adjudication to Defendant Dedicated Transportation Services, Inc.’s motion for summary judgment.” Plaintiff did not seek prior court order to allow for the late submission and finding of good cause for the late submission.
On September 1, 2022, the document was purportedly, belatedly served by email on defense counsel. However, the proof of service does not comply with Code of Civil Procedure section 1013b in several ways, including that it fails to provide the electronic service address of the person served. Nevertheless, the court will consider the late-filed Opposition.
The court reminds the parties that litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self-represented litigants are entitled to same treatment as represented parties]; see Cal. Rules of Court, Rule 1.6(15) [defines “parties” as including both self-represented persons and persons represented by an attorney of record without making any distinction between them].) The fact that a party is a self-represented litigant does not relieve him or her of the requirements, law, and procedures applied to all parties who appear in this court. Self-represented litigants are “held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Summary Judgment 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.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)
Merits
In the Complaint, Plaintiff alleges negligence and premises liability against Defendant. 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 are: (1) Defendant owned/leased/occupied/controlled the property, (2) Defendant was negligent in the use or maintenance of the property, (3) Cross-Complainant was harmed, and (4) Defendant’s negligence was a substantial factor in causing Cross-Complainant’s harm. (CACI no. 1000; Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139. [“The same concepts of duty applicable to general negligence claims apply to premises liability claims.”]; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [the elements of a negligence claim and a premises liability claim are the same.].)
Defendant argues that summary judgment should be granted because it has a complete defense. Specifically, the condition was “open and obvious.” “[L]andowners have no duty to warn of open and obvious dangers on their property because such dangers serve as warnings themselves.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207-1208.) “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.) “[A] possessor of land has no duty toward persons who come upon the land to change the method of his operations which are carried on so openly as to be obvious to all observers.” (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 28.) The owner of the land is entitled to assume others will take action to avoid any obvious dangers. (Jacobs v. Coldwell Banker Residential Brokerage Co., supra, 14 Cal.App.5th at p. 447.) However, the owner of the land still must use reasonable care to protect against the risk of harm if it is foreseeable that the condition may cause injury to someone who because of necessity encounters the condition. (CACI no. 1004.)
The relevant undisputed facts are as follows. The incident occurred at Defendant’s towing company. Plaintiff’s car had been towed. (Mancuso Decl., at ¶ 2; Regan Decl., at Exh. A, at p. 18.) At Defendant’s facility, Plaintiff asked to sit down. (Regan Decl., at Exh. B, at pp. 15, 18.) As a result, Plaintiff entered the office where normally, only employees are allowed. (Mancuso Decl., at ¶ 3; Regan Decl., at Exh. B, at p. 18.) The office has a metal door threshold between the entryway and the office, that is clearly visible. (Mancuso Decl., at ¶ 3; Exhs. C, D, & E.) Plaintiff tripped on the threshold as she went to enter the office and fell. (Regan Decl., Exh. A, at p. 34; Exh. B, at p. 18.)
Defendant has met its burden in showing that it has a complete defense to Plaintiff’s claims. Here, the metal door threshold was clearly visible. (Mancuso Decl., at ¶ 3; Exhs. C, D & E.) The metal threshold was high. (Regan Decl., at Exh. A, at p. 34.) Any danger presented by the metal threshold was open and obvious. Therefore, Defendant did not owe Plaintiff any duty to warn of the condition.
Plaintiff failed to present substantial and admissible evidence creating a triable issue of material fact. With her opposition, she provided her declaration, medical records, a demand brief from her counsel, and an offer to compromise. She averred that Defendant failed to give a warning. But, Defendant was not obligated to give a warning. Accordingly, the motion for summary judgment is granted.
The June 19, 2023 trial is hereby vacated. The court will sign the proposed judgment.
Defendant shall give notice of ruling.