Judge: Gregory Keosian, Case: 21STCV42453, Date: 2023-05-16 Tentative Ruling

Case Number: 21STCV42453    Hearing Date: May 16, 2023    Dept: 61

Defendants City of Torrance and Torrance Unified School District’s Motion for Summary Judgment is GRANTED.

Defendants to provide notice.

I.                   SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  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.)

Defendant City of Torrance and joining Defendant Torrance Unified School District (Defendants) move for summary judgment against Plaintiff Susan C. Morinaga’s (Plaintiff) claims for nuisance and negligence. This motion is based on the contention that Plaintiff has failed to produce documents responsive to Defendants’ discovery requests, despite assurances of compliance, and has failed to respond at all to Defendants’ interrogatories. (Motion at pp. 7–10.)

“[A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)

“So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.” (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.) And the elements of a claim for negligence arising from a dangerous condition on property are: (1) Defendant owns or controls the property; (2) the property was in a dangerous condition at the time of injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; (4) Defendant unreasonably created or negligently failed to abate the condition; (5) Plaintiff was harmed; and (6) the dangerous condition was a substantial factor in the harm. (CACI 1100.)

Plaintiff here served responses to requests for production on July 22, 2022. The requests sought documents corroborating Plaintiff’s allegations that the walls of the drainage channel adjacent to her property had failed, that standing water now pooled in the open canal, that she owned property affected by the alleged failures, and that her property had in fact suffered harm as a result. (Motion Exh. D.) Plaintiff responded with objections and statements of compliance. (Ibid.) However, Plaintiff has never produced documents pursuant to these responses, and has never provided responses to special interrogatories served upon her on May 2, 2022, which questioned her on similar matters. (Yoshiba Decl. ¶¶ 11–16.)

Plaintiff, asked to present documents supporting the key contentions of her claims, regarding the nature of the nuisance and the harm allegedly suffered, has produced no such documents, and has provided no responses to interrogatories directly questioning her concerning the same matters. Such factually devoid discovery provides a basis for Defendants to show the absence of triable issues of fact concerning the existence of a nuisance or dangerous condition on the property, and the absence of any harm suffered by Plaintiff therefrom. Plaintiff has filed no opposition to this motion.

The motion is therefore GRANTED.