Judge: Katherine Chilton, Case: 21STLC05944, Date: 2023-01-09 Tentative Ruling

Case Number: 21STLC05944     Hearing Date: January 9, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant Fox Rent-A-Car

RESP. PARTY:         None

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

The hearing on the Motion for Summary Judgment filed by Defendant Fox Rent-A-Car is CONTINUED to FEBRUARY 27, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Defendant is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300)             OK

[X] Correct Address (CCP 1013, 1013a)                                     UNCLEAR

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))                     OK

OPPOSITION:          None filed as of January 5, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of January 5, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On August 12, 2021, Plaintiffs Tomesha Fowler (“Fowler”) and Aman Robertson (“Robertson”), (collectively “Plaintiffs”), filed an action against Defendants Clayton Watson (“Watson”), Marlana Dutton (“Dutton”), and Fox Rent-A-Car (“Fox”), (collectively “Defendants”) for motor vehicle and general negligence arising out of an alleged automobile accident that took place on August 13, 2019.

On April 5, 2022, Defendant Fox filed an Answer to the Complaint. Defendants Watson and Dutton have not been served as yet.

On October 24, 2022, Defendant Fox filed the instant Motion for Summary Judgment (“Motion”), seeking judgment in favor of Defendant.

No opposition has been filed.  On December 29, 2022, Defendant Fox filed a Notice of Non-Opposition to the Motion.

II.              Judicial Notice

According to Evidence Code § 452, the Court may take judicial notice of matters that include records or rules of another court and “facts or propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Here, Defendant submitted a Request for Judicial Notice (“RJN”) on October 24, 2022, of the following documents:

1)     Plaintiff’s Complaint filed in the instant case;

2)     California Secretary of State, Statement of Information for Fox Rent-A-Car, Inc.

The Court finds that it is not necessary to take judicial notice of the Plaintiff’s Complaint in the instant case.  Furthermore, privately prepared documents filed with the Secretary of State and not previously part of the Court record are not subject to judicial notice, and neither is the truth of its contents.  (People v. Thacker (1985) 175 Cal.App.3d 594, 598-99; Herrera v. Deutsche National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Accordingly, Defendant’s Request for Judicial Notice is DENIED.

III.            Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law.  (Code Civ. Proc. § 437c(c).)  The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition.  (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.)  Thus, “the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought.  (Code Civ. Proc., § 437c(p)(1).)  When a defendant seeks summary judgment, he/she has the “burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.”  (Code of Civ. Proc. § 437c(p)(2).)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden.  (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)  Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial.  (Code Civ. Proc. § 437c(p).)  The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)  Summary judgment must be granted “if 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute.  (Code Civ. Proc., § 437c(f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)

IV.           Discussion

As a preliminary matter, the Court cannot discern whether Plaintiffs have been properly served with the moving papers.

On October 24, 2022, Defendant Fox filed Proof of Service indicating that Plaintiffs have been served with the Notice and Motion for Summary Judgment via e-mail sent to Plaintiffs’ Counsel Okey George Chukwudobe at okeygeorgelaw@gmail.com.  (10-24-22 Proof of Service.)  The Court notes that the email address indicated on the Complaint for Plaintiffs’ Counsel is okeygeorgelaw1927@att.net.  (See Compl.)  The Court cannot locate the email address listed in the Proof of Service anywhere in the record and cannot confirm that it is associated with Plaintiffs’ Counsel.

Given that no opposition has been filed, the Court is inclined to continue the hearing on the Motion to confirm that Plaintiffs have been properly served.  Defendant is ordered to provide the Court with proof that the email address is associated with Plaintiff’s Counsel.

For this reason, the Court CONTINUES the hearing on Defendant Fox’s Motion for Summary Judgment.

V.             Conclusion & Order

For the foregoing reasons,

The hearing on the Motion for Summary Judgment filed by Defendant Fox Rent-A-Car is CONTINUED to FEBRUARY 27, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Defendant is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

The current trial date of February 9, 2023 is advanced and vacated.  Trial is set for July 18, 2023 at 8:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is ordered to give notice.