Judge Eddie C. Sturgeon, Case 37-2021-00016993-CU-PO-CTL 2024-01-05 Tentative Ruling

Judge: Eddie C. Sturgeon, Case: 37-2021-00016993-CU-PO-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00016993-CU-PO-CTL HEIGHTMAN VS TOWNSEND [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/10/2023

Defendant The Prescott Companies' Motion for Summary Judgment is DENIED. Plaintiff's Motions to Compel Discovery are DENIED as moot with further clarifications as discussed in the third section of this order. Sanctions are imposed against Defendant The Prescott Companies in the reduced amount of $500.

1. Evidentiary Objections and Request for Judicial Notice Defendant Prescott's Objection Nos. 33 and 35 are sustained. All other objections are overruled.

All requests for judicial notice are granted. 'A court may take judicial notice of documents in its own records and those reflecting the official acts of local and state agencies[.]' (Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 599; see Evid. Code, § 452(c), (g), (h).) 'In taking judicial notice of an official document, a court may take notice not only of the fact of the document but also facts that can be deduced, and/or clearly derived from, its legal effect, such as the names and dates contained in the document, and the legal consequences of the document.' (Id.

at 600.) In reviewing the documents and hyperlinks provided, they contain judicially noticeable information. Moreover, Defendant has admitted that the accident took place in Escondido. (See ROA 105, Mot. at p. 5:5.) Protestations that the court should not judicially notice the location of the accident seem without purpose.

2. Summary Judgment The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (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; 'no more is called for.' (Id. at 851.) The moving party must show that the undisputed facts, when applied to the issues framed by the pleadings, entitle the moving party to judgment. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) If the moving party carries this burden, it causes a shift, and the opposing party is then subject to its own burden of production to make a prima facie showing that a triable issue of material facts exists. (Aguilar, supra, 25 Cal.4th at 850.) Courts must view the evidence and inferences 'in the light most favorable to the opposing party.' (Id. at 843.) 'A motion for summary adjudication . . .

shall proceed in all procedural respects as a motion for summary judgment' and 'shall be granted only if it completely disposes of a cause of action, . . . a claim for damages, or an issue of duty.' (Code Civ.

Proc., § 437c(f).) Calendar No.: Event ID: TENTATIVE RULINGS

2994342 4 CASE NUMBER: CASE TITLE: HEIGHTMAN VS TOWNSEND [IMAGED] 37-2021-00016993-CU-PO-CTL It is undisputed that the only cause of action naming Defendant Prescott is the second cause of action for premises liability. The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) The court finds that Defendant has not met its burden in conclusively negating any of the elements of Plaintiff's second cause of action for premises liability. The management agreement, submitted by Defendant Prescott in its initial motion, between Lomas Serenas and Prescott obligated Prescott to 'secure contracts for the maintenance and physical plant operation of the Property, typically through a competitive bidding process for Board approval. . . . Agent shall make monthly inspections of all ground areas and landscaping improvements to determine whether such are receiving adequate care and maintenance. In accordance with the Association's annual budget, Agent may take reasonable steps on the Association's behalf to cure any routine deficiencies noted. Deficiencies of a serious nature will be brought to the attention of the Board.' (ROA 137, Ex. 3, § 8.) Additionally, Plaintiff deposed Ms. Dee Rowe who worked for Prescott as its community manager for Lomas Serenas from 2011 to 2014. Ms. Rowe testified that, based on an identical management agreement, she walked the property monthly, oversaw the contractors, investigated landscaping to see if it interfered with line of sight, issued work orders to have tree branches trimmed to improve visibility, and specifically inspected the subject intersection. (ROA 166, Ex. 1, Rowe Depo. at pp. 20:16-25, 27:23-29:4, 44:19-45:17, 46:15-23; 57:21-58:21, 60:22-61:6.) Rowe, on behalf of Prescott, was also involved in securing bids for hiring a landscape designer for Lomas Serenas to renovate the landscaping at the subject intersection and Prescott was otherwise involved in the renovation project. (Id., pp. 46:25-47:17, 63:9-65:1, 117:2-118.5.) Defendants argue that Roe also stated that during conversations regarding landscaping visibility, '[u]sually, that would be an expert that was leading that conversation in landscaping because I am not an expert in landscaping and most community managers aren't. So what we are experts in is knowing when to call in experts and have them advise our board on things we don't know about. . . . [T]he landscape contractor is supposed to be educated in those requirements as well.' (ROA 182, Ex. A, Rowe Depo., p. 62:5-15.) But those statements do not affirmatively negate the duty element. Further, the evidence is not conclusive as to a lack of knowledge or the existence of a dangerous condition. Accordingly, the motion for summary judgment is denied.

3. Motions to Compel Discovery (ROAs 122, 127, 132) Plaintiff's motions were initially filed on the basis that Defendant had not served any compliant responses by the time the motions were filed on July 20, 2023, nearly 150 days after the discovery was initially served. Defendant subsequently served responses on August 9, 2023.

The court retains discretion to hear a motion to compel even if untimely responses are filed. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court 'might compel responses without objection if it finds no legally valid responses have been provided to one or more interrogatories; it might deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions; it might treat the motion as [a motion to compel further responses] and . . . order the propounding party to 'meet and confer' . . . and file a separate statement . . . ; or it might take the motion off calendar, thereby requiring the propounding party to file a motion [to compel further responses].' (Ibid.) Here, the court does not have the benefit of separate statements and finds it appropriate to order the parties to meet and confer in good faith and, if necessary, file one consolidated motion with attached separate statements to be heard on an expedited basis. The court notes that this process is unique to these motions due to the length of time they have been outstanding and reminds the parties that consolidated discovery motions are not usually appropriate in this department absent leave of court.

The court grants sanctions in favor of Plaintiff in the reduced amount of $500.

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