LEGAL STANDARD  

A.      Summary judgment 

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.)  

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)   

If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)  

In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it, and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.)  

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”  (Code Civ. Proc., § 437c, subd. (h).) 

B. Negligence 

 “The elements of a negligence claim . . . are . . . : a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

DISCUSSION 

A.   Complaint 

The complaint alleges:  

“At all relevant times mentioned herein, Plaintiff was a truck driver, whose duties included delivering items from one location to another in a tractor trailer. On or about May 29, 2018, in an assignment received from Defendant Home Depot, Plaintiff picks up a tractor filled with large pallets and was told to deliver them to Defendant Sundial Powder premises, located at 8421 Telfair Avenue, Sun Valley, CA 91352. 

“Upon arriving at Defendant Sundial Powder Coating's premises, Plaintiff was instructed by employees of Defendant Sundial Powder Coating to unload the pallets onto their premises. As Plaintiff attempted to unload the pallets, they fell onto Plaintiff, thereby causing severe bodily injuries.  The pallets were not secured or organized thereby constituting a dangerous condition. Furthermore, it is not within the job description of Plaintiff to load or unload or otherwise assist in the loading or unloading of any items from the tractor trailers.” 

B.   Undisputed facts 

Bottom of Form

Plaintiff alleges he was injured while delivering a truck load of pallets or carts to Sundial.  Sundial’s employees instructed Plaintiff to unload the pallets on Sundial’s premises.  (UMF 1.) Plaintiff asserts the pallets or carts were not secured or organized because Home Depot improperly loaded the truck, creating a dangerous condition.  (UMF 2.) 

C.   Home Depot’s argument 

Home Depot argues that although Plaintiff has had ample opportunity to conduct discovery, Plaintiff does not possess and cannot reasonably obtain evidence that Home Depot loaded the carts into the container that Plaintiff drove to Sundial.  Therefore, Home Depot argues, Plaintiff cannot prove Home Depot owed him a duty of care, breached the duty, or caused the incident. 

Home Depot cites the following evidence: 

At his deposition, Plaintiff testified he did not know who loaded the container and did not know when the container was loaded.  He believed the carts in the container came from Home Depot because they were orange.  Other than the orange color, Plaintiff had no information that the carts he saw on the truck were from Home Depot. 

In response to a special interrogatory asking Plaintiff to identify “all who loaded the CARTS prior to YOU picking them up,” Plaintiff responded: “Responding party is not aware of who loaded the CARTS prior to him picking them up.” 

Based on this evidence, Home Depot has carried its initial burden on summary judgment, shifting the burden to Plaintiff. 

D.   Plaintiff’s argument 

Plaintiff argues that, on the day of the incident, he received a text message that mentions Home Depot. The text message is hearsay and the Court sustains Home Depot’s objection to it.  Even if the text message was not hearsay or fell within an exception to the hearsay rule, the Court could not consider the interpretation of the text message provided by Plaintiff’s counsel because counsel lacks personal knowledge. 

Plaintiff also argues that Sundial produced a promotional video in discovery which shows Sundial working on several orange carts, one of which has “H.D.” on it.  The Court sustains Home Depot’s objection to screen shots from the video based on lack of foundation. 

Despite viewing Plaintiff’s evidence in the light most favorable to Plaintiff and drawing all inferences in Plaintiff’s favor, the Court cannot find Plaintiff has raised a triable issue of fact.  Even assuming Home Depot carts were included in the shipment that Plaintiff delivered, Plaintiff has not presented evidence suggesting that Home Depot had any role in loading the carts into the container that Plaintiff picked up and transported to Sundial. 

Plaintiff asks the Court to continue the hearing of the summary judgment motion under Code of Civil Procedure section 437c, subdivision (h) so that Plaintiff can seek additional evidence that Home Depot loaded the carts into the container.  Since Home Depot appeared in the case in September 2021, Plaintiff has had almost two years to conduct discovery.  Plaintiff has not provided any reason to believe that “facts essential to justify opposition [to summary judgment] may exist but cannot, for reasons stated, be presented . . . .”  (Code Civ. Proc., § 437c, subd. (h).)  The Court denies the request for a continuance.