Judge: Marcella O. Mclaughlin, Case: 37-2020-00016394-CU-PO-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00016394-CU-PO-CTL KASS VS HUME & COMPANY INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/19/2023

The motion for summary judgment or, in the alternative, summary adjudication is GRANTED in part and DENIED in part.

A. As an initial matter, the court denies plaintiff's request to disregard the motion for violating Code of Civil Procedure section 437c(f)(2). See Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1106.

B. The court rules on the parties' evidentiary objections as follows: Hume's objection to plaintiff's declaration – for which no proposed order was submitted – is overruled.

CRC 3.1354(c).

The court declines to rule on plaintiff's objections as they are directed to facts in the separate statement, rather than specific evidentiary material. 'A separate statement is not, in and of itself, evidence.' Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1020.

C. The motion for summary adjudication of issue 1 is granted.

A plaintiff in a products liability case may seek recovery on theories of both strict liability and negligence.

Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 553.

In this case, Hume has submitted evidence showing that it has never been involved in the manufacture or sale of Vikane gas. (Hume Decl., ¶ 16.) Moreover, when asked in discovery to identify 'all facts' in support of her contention that Benex manufactured or sold Vikane gas, plaintiff did not identify any facts concerning the manufacture or sale of Vikane gas. (See Exs. L, N.) In other words, plaintiff answered a comprehensive interrogatory by stating, in effect, that she had no specific facts supporting her products liability claim against Hume, which is based on Benex working as Hume's agent. This is sufficient to shift the burden to plaintiff. See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107 ('If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs' factually devoid discovery responses.').

Plaintiff has not presented any evidence showing that either Hume or Benex manufactured or sold Vikane gas. Plaintiff contends she need not make such a showing pursuant to Smith v. Lockheed Calendar No.: Event ID:  TENTATIVE RULINGS

3036802  46 CASE NUMBER: CASE TITLE:  KASS VS HUME & COMPANY INC [IMAGED]  37-2020-00016394-CU-PO-CTL Propulsion Co. (1967) 247 Cal.App.2d 774 and Luthringer v. Moore (1948) 31 Cal.2d 489. However, those cases are distinguishable because they involved strict liability claims for ultra hazardous activities – not claims for strict products liability. Compare CACI 1200, with CACI 460. Accordingly, plaintiff has failed to meet her burden of showing that a triable issue of material fact exists regarding her products liability claims. Code Civ. Proc. § 437c(p)(2).

D. The motions for summary adjudication of issues 2 and 3 are denied.

'[I]n order to prove facts sufficient to support a finding of negligence, a plaintiff must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292.

With respect to the first element, duty is a question of law for the court. Hernandez v. Jensen (2021) 61 Cal.App.5th 1056, 1064. The California Supreme Court has held that Civil Code section 1714 imposes a general duty of care on a defendant when the defendant has 'created a risk' of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse. Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716. Here, Hume does not cite section 1714. Nor does Hume cite Rowland v. Christian (1968) 69 Cal.2d 108, which sets forth several considerations that may, on balance, justify a departure from Civil section section's 1714's default rule of duty. Accordingly, Hume has failed to carry its initial burden of showing that the duty element cannot be established. Code Civ.

Proc. § 437c(p)(2).

As for the second element, '[w]hether the defendant was negligent or breached its duty of care to the plaintiff is often a fact-specific question that asks whether the defendant 'acted reasonably under the circumstances.'' Mayes v. La Sierra University (2022) 73 Cal.App.5th 686, 705 fn. 2. In this case, liberally construing plaintiff's evidence, the court finds there is a triable issue of material fact regarding whether Benex breached a duty to plaintiff with respect to the tenting and fumigation of the McGuire residence. The evidence that creates this triable issue includes: (i) the declaration of Daniel Napier; (ii) the deposition of Timothy Andy Cruz; and (iii) Exs. K, G, and M. See Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 600 ('In ruling on the motion, the court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party.'); see also Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304 ('Any doubts about the propriety of granting a summary judgment motion must be resolved in favor of the party opposing the motion.').

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