Judge: Kenneth J. Medel, Case: 37-2021-00042735-CU-PO-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00042735-CU-PO-CTL RAMOS HERNANDEZ VS CONCENTRA PRIMARY CARE OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 03/23/2023

The motion for summary judgment by Defendants Concentra Health Services, Inc. and Select Medical Corporation is DENIED.

Preliminary Matters The Court need only rule on those objections it deems material to its disposition of the motion. (Code Civ. Proc., § 437c(q).) Here, that is none.

There is no provision in the rules that provide for a reply separate statement in support of a motion for summary judgment. (CRC rule 3.1350; Nazir v. United Airlines (2009) 178 Cal.App.4th 243, 249, 252.) Defendants' reply separate statement thus will not be considered.

The general rule of motion practice is that new evidence is not considered on reply unless the evidence fills gaps created by the opposition. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) Moreover, '[w]hile the code provides for reply papers, it makes no allowance for submitting additional evidence or filing a supplemental separate statement. (§ 437c, subd. (b).)' (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.) The Court has not considered the reply declaration of Joseph M. Radochonski and exhibits.

Discussion Summary judgment 'shall be granted if all papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ. Proc., § 437c.) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If a defendant meets its burden, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c(p)(2); Aguilar, supra, 25 Cal.4th at 849-851.) If the plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) Defendants contend they are entitled to summary judgment because Plaintiff cannot establish a dangerous condition or that Defendants had actual or constructive notice of a dangerous condition.

The Court finds Defendants have not met their burden of production on a summary judgment to show the absence of a triable issue of fact.

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2975938  38 CASE NUMBER: CASE TITLE:  RAMOS HERNANDEZ VS CONCENTRA PRIMARY CARE OF  37-2021-00042735-CU-PO-CTL The law is well settled. 'Conjecture that the floor might have been too slippery at the location where [Plaintiff] happened to fall is mere speculation which is legally insufficient to defeat a summary judgment.' (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734). 'The mere possibility that there was a slippery substance on the floor does not establish causation.' (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036, emphasis original.) 'Absent any evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to [defendant], [plaintiff] cannot sustain [her] burden of proof.' (Ibid.) On summary judgment, the burden of production is on Defendants to show there was no dangerous condition. Defendants do not offer evidence to assert there was nothing slippery on the floor or that there was nothing dangerous. Instead, Defendants rely on Plaintiff's deposition testimony and discovery responses to meet their burden of production on whether there was a dangerous condition. Defendants argue Plaintiff testified at deposition that when she first went to the main entrance, she did not see any water and that after she fell. (UMF 4.) Defendants also argue that Plaintiff testified that she did not see any water at the spot she fell and did not see anyone clean up after. (UMF 12.) Defendants further argue Plaintiff's discovery responses explain that Plaintiff admits she did not personally see any water and has no facts showing when the water in or around the mat first appeared or how long it existed.

Defendants also note Plaintiff identified herself as the only witness regarding Defendants' notice of the water, the only fact Plaintiff raises supporting her Complaint is that Defendants 'did not keep the area dry,' and the only facts supporting Defendants' notice was that it was raining outside. (UMF 17-19.) Defendants repeatedly reference Plaintiff's deposition testimony and discovery responses to contend she did not in fact see water and does not know when and for how long the water that caused her to slip and fall was on Defendants' premises. However, these facts do not entitle Defendants to summary judgment. Even if Plaintiff did not see water before or after she fell and does not know specifically when and for how long the water was there, Plaintiff fell. (Defendants' Notice of Lodgment, Exhibit A, p. 32: 20-23.) Plaintiff also knew it was wet where she fell, since she testified her pants were damp after she fell. (See Defendants' Notice of Lodgment [NOL], Exhibit A, p. 42: 19-22.) These facts are contained in Defendants' UMF Nos. 10 and 12. Plaintiff also testified that her home was approximately ten minutes away from Defendants' Urgent Care, it was raining when she drove from her home to Defendants' Urgent Care, and it was sprinkling when she went back to close her care door before she went to the main entrance. (Defendants' NOL, Exhibit A, pp. 24: 17-25: 1, 31: 16-21, 32: 2-8; see also Defendants' NOL, Exhibit B, pp. 8: 25-9: 5 [Plaintiff's response to Special Interrogatory No. 7 the water in or around the mat caused Plaintiff to fall due to Defendants' failure to exercise due care because Defendants allowed the subject area to become dangerous when they did not keep the area dry].) Thus, triable issues exist.

Conclusion The minute order will be the final ruling of the Court. Plaintiff is ordered to serve written notice of ruling on all parties.

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