Judge: Kenneth J. Medel, Case: 37-2021-00052759-CU-PO-CTL, Date: 2024-02-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  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) 37-2021-00052759-CU-PO-CTL BROWN VS ORION CONSTRUCTION CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/19/2023

Defendant Baja Exploration's Motion for Summary Judgment as to Plaintiff's Second Cause of Action for General Negligence is DENIED.

Defendant Baja Exploration's alternative Motion for Summary Adjudication as to Plaintiff's Second Cause of Action for General Negligence is DENIED.

Preliminary Matters 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.) There is also 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.) Thus, Defendant Baja Exploration's reply separate statement and the reply declarations of John Wilking and Jose Sandoval will not be considered. (ROA 94-96.) Relevant Factual and Procedural Background Plaintiff filed her operative Complaint for 1) Premises Liability and 2) General Negligence. Plaintiff alleges on May 23, 2021, she crashed and sustained injuries due to a 'massive defect' in the roadway at Mission Boulevard and Pacific Beach Drive in San Diego.

Plaintiff initially named Orion Construction Corporation (Orion), S.C. Valley Engineering, Inc. (S.C.

Valley), and the City of San Diego (the City) as Defendants. (ROA 1.) Plaintiff later filed amendments to the Complaint substituting Twining, Inc. (Twining) and Baja Exploration (Baja) in place of Doe Defendants. (ROA 15, 42.) On November 21, 2022, Plaintiff dismissed the premises liability cause of action as to Baja only. (ROA 43.) Baja seeks summary judgment or alternatively summary adjudication as to Plaintiff's remaining cause of action against Baja for general negligence.

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3007164  45 CASE NUMBER: CASE TITLE:  BROWN VS ORION CONSTRUCTION CORPORATION  37-2021-00052759-CU-PO-CTL 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 party may move for summary adjudication as to causes of action, affirmative defenses, claims for damages or issues of duty. (Code Civ. Proc., § 437c(f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action. (Ibid.) Summary adjudication motions are 'procedurally identical' to summary judgment motions. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) 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.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying facts in favor of the party opposing the motion in accordance with the applicable standard of proof. (Id. at p. 850.) 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.) In conducting this analysis, the court must strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-39), and may not weigh the evidence or conflicting inferences. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) Pleadings Based on the pleadings, which delimit the factual issues for purposes of summary judgment, Plaintiff alleges Defendants negligently caused damage to Plaintiff on May 23, 2021 at Mission Boulevard and Pacific Beach Drive, San Diego, CA. (Complaint, p. 6, GN-1.) Plaintiff further alleges Defendants 'negligently maintained constructions [sic] sites and/or the roadway for which they were responsible for making improvements. Plaintiff was injured as a direct and proximate result of Defendants' negligence.

Defendants had a duty to construct, repair, inspect, and maintain the area where Planitiff [sic] crashed and breahced [sic] this duty by creating, failing to warn, and/or allowing to exist a massive defect in the roadway which caused Plaintiff's injuries.' (Id.) Plaintiff further alleges she has suffered economic and non-economic damages as a direct and proximate result of the negligent acts and omissions of Defendants. (See id.) Each noticed issue for summary judgment/adjudication is discussed below.

Noticed Issue One: Plaintiff's general negligence claim fails as a matter of law because there is no evidence that Baja breached any duty of care owed to Plaintiff during the performance and following the completion of Baja's work.

DENIED.

'The elements of a cause of action for negligence are well established. They are '(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.' ' (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 (citation omitted).) The elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination.

(McGarry v. Sax (2008) 158 Cal.App.4th 983, 994.) 'Breach is the failure to meet the standard of care.' (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) Calendar No.: Event ID:  TENTATIVE RULINGS

3007164  45 CASE NUMBER: CASE TITLE:  BROWN VS ORION CONSTRUCTION CORPORATION  37-2021-00052759-CU-PO-CTL Baja contends that Plaintiff's factually devoid discovery responses demonstrate that Plaintiff cannot establish the elements of her general negligence claim.

' 'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed [together with] a reference to the supporting evidence.' ' (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168, emphasis original and citations omitted.) 'This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.' (San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 313, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) Although Baja relies on Plaintiff's discovery responses and attaches them as exhibits to the declaration of counsel, Baja did not include Plaintiff's discovery responses in the separate statement but instead cited directly to the responses in its memorandum of points and authorities. Nor did Baja include evidence in its moving papers regarding the terms of the standard under the Greenbook or details on Baja's compliance with such standard. Thus, Defendant has failed to set forth 'all material facts contended to be undisputed together with supporting evidence.' (C.C.P., § 437c(b)(1).) Additionally, Baja's legal arguments in its memorandum of points and authorities do not cite to any of its separate statements of undisputed material fact.

Even if Baja presented sufficient evidence to shift the burden on Plaintiff, she has provided evidence that Baja failed to properly backfill the subject borehole in accordance with state and county standards.

Specifically, Plaintiff has provided evidence that Baja was responsible for drilling the subject borehole [PMF 52-53]; Baja encountered groundwater while drilling the subject borehole, but failed to stop drilling and failed to notify the County that Baja encountered groundwater as required by the County of San Diego Department of Environmental Health and Quality [PMF 13, 56-58, 74]; Baja improperly backfilled the subject borehole using improper materials (soil from the drill cuttings, cement slurry, and Bentonite) in contravention to the Wells Standards Bulletin 74-90 from the California Department of Water Resources [PMF 60-66, 73, 76-77, 101]; and Baja failed to use methods and the equipment to fill the subject borehole as set forth in the Wells Standards Bulletin and to the County's requirements [PMF 81-90, 102]. Thus, triable issues remain.

Noticed Issue Two: Plaintiff's general negligence claim fails as a matter of law because there is no evidence that any of Baja's work proximately caused Plaintiff's damages.

DENIED.

'The element of causation requires there to be a connection between the defendant's breach and the plaintiff's injury.' (Coyle, supra, 24 Cal.App.5th at p. 645.) For the reasons set forth above, Baja did not shift the burden to Plaintiff based on Plaintiff's discovery responses. Assuming Baja presented sufficient evidence to shift the burden on Plaintiff, she has provided evidence that Baja was responsible for drilling the subject borehole [PMF 52-53]; Plaintiff struck the subject borehole that Baja created [PMF 19, 21-22, 24-46, 47-49, 53-55]; failing to use proper processes and/or methods in filing the borehole creates a risk the mixture would not properly backfill, allowing for soil arching and space for water intrusion and resulting in subsidence [PMF 67-70, 90-93]; and Baja's failure to use the proper mixture, methods and equipment to backfill the subject borehole caused the subject borehole to subside, creating a defect in the roadway [PMF 94, 96-97, 103]. Thus, triable issues remain.

Conclusion The minute order will be the final ruling of the Court. Plaintiff is ordered to serve written notice of ruling Calendar No.: Event ID:  TENTATIVE RULINGS

3007164  45 CASE NUMBER: CASE TITLE:  BROWN VS ORION CONSTRUCTION CORPORATION  37-2021-00052759-CU-PO-CTL on all parties.

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