Judge: Mark C. Kim, Case: 20LBCV00129, Date: 2023-03-16 Tentative Ruling
Case Number: 20LBCV00129 Hearing Date: March 16, 2023 Dept: S27
1.
Background
Facts
Plaintiffs, Michael, Injin, and Nicholas Park filed this action against
Defendants, Foasberg Laundry and Cleaners, Inc., Richard D. Foasberg, the
Estate of Richard D. Foasberg, Marisa Foasberg, Lynette Jean Vavrek, and JRJ
Limited Partnership for damages arising out of contamination on Defendants’
property for which Plaintiffs have incurred removal and/or remedial action
costs in connection with the Hazardous Substance Account Act.
Plaintiffs filed their complaint on 3/03/20, and Defendants filed an answer
on 10/07/20. Plaintiffs’ complaint
includes causes of action for California Superfund Act, Negligence, Trespass,
Nuisance, Breach of Contract, and Declaratory Relief.
Defendants have cross-complained against, among others, R.R. Street
& Co., Inc., contending it is responsible in whole or in part for the subject
contamination. There are multiple
cross-complaints between the parties.
2.
Motion
for Summary Judgment
a. Parties’ Positions
Street seeks summary judgment on Defendants’ cross-complaint. It contends it propounded the full panoply of
discovery on Defendants, and Defendants’ responses to the discovery were
factually devoid, such that it is entitled to judgment as a matter of law. Specifically, it contends (a) it cannot be
held liable on the first cause of action because it is not a person who is
liable per the HSAA; (b) it cannot be liable on the fifth, sixth, seventh,
eighth, and/or ninth causes of action because Defendants cannot show causation;
and (c) it cannot be held liable on the second, third, and/or fourth causes of
action because there are no substantive claims against it that survive summary
judgment.
Defendants oppose the motion. They
argue (a) the subject discovery is not sufficient to shift the moving burden;
(b) Street is wrongfully withholding documents in discovery; (c) there are
triable issues concerning causation; and (d) there are triable issues
concerning Street’s liability as an arranger.
Street, in reply, contends it has fully cooperated with discovery. It contends there are no triable issues
raised by way of the motion, and the motion must be granted.
b.
Burdens
on Summary Judgment
Summary judgment is proper “if all
the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or
adjudication, he must show that either “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 that cause of action.”
(Id. at §437c(o)(2).) A defendant
may satisfy this burden by showing that the claim “cannot be established”
because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.) Once the
defendant meets this burden, the burden shifts to the plaintiff to show that a
“triable issue of one or more material facts exists as to that cause of action
or defense thereto.” (Ibid.)
The moving party bears the initial
burden of production to make a prima facie showing that there are no triable
issues of material fact. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must
show either (1) that one or more elements of the cause of action cannot be
established or (2) that there is a complete defense to that cause of
action. (Id. at §437c(p).) A defendant may discharge this burden by
furnishing either (1) affirmative evidence of the required facts or (2)
discovery responses conceding that the plaintiff lacks evidence to establish an
essential element of the plaintiff's case. If a defendant chooses the latter
option he or she must present evidence “and not simply point out that plaintiff
does not possess and cannot reasonably obtain needed evidence….” Aguilar,
supra, 25 Cal.4th at 865-66,
[A] defendant may simply show the
plaintiff cannot establish an essential element of the cause of action “by
showing that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence.” (Id. at p. 854.) Thus,
rather than affirmatively disproving or negating an element (e.g., causation),
a defendant moving for summary judgment has the option of presenting evidence
reflecting the plaintiff does not possess evidence to prove that element. “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” to support an essential
element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a
defendant's initial evidentiary showing may “consist of the deposition
testimony of the plaintiff's witnesses, the plaintiff's factually devoid
discovery responses, or admissions by the plaintiff in deposition or in
response to requests for admission that he or she has not discovered anything
that supports an essential element of the cause of action.” (Lona v. Citibank,
N.A., supra, 202 Cal.App.4th at p. 110.)
In other words, a defendant may show the plaintiff does not possess
evidence to support an element of the cause of action by means of presenting
the plaintiff's factually devoid discovery responses from which an absence of
evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co.
(1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two
means by which to shift the burden of proof under the summary judgment statute:
“The defendant may rely upon factually insufficient discovery responses by the
plaintiff to show that the plaintiff cannot establish an essential element of
the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant
may utilize the tried and true technique of negating (‘disproving’) an
essential element of the plaintiff's cause of action.” (Brantly v. Pisaro
(1996) 42 Cal.App.4th 1591, 1598.) Leyva
v. Garcia (2018) 20 Cal.App.5th 1095, 1103.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving defendant has discharged its burden
as to a particular cause of action, however, the plaintiff may defeat the
motion by producing evidence showing that a triable issue of one or more
material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving
party's supporting documents are strictly construed and those of his opponent
liberally construed, and doubts as to the propriety of summary judgment should
be resolved against granting the motion.
(D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
c. Initial Note re: Summary Adjudication
Street filed a motion for summary judgment and set it for hearing on
3/14/23. Street filed a motion for
summary adjudication and set it for hearing on 3/16/23. There is only one set of papers filed in
connection with the two hearing dates. It
is not clear why the motions were reserved with separate dates.
In any event, the Court has reviewed the separate statement filed in
connection with the motion and finds it is insufficient to support summary
adjudication because it fails to comply with CRC 3.1350(b) and (h), which
require the facts supporting each issue to be adjudicated to be stated
separately in the statement. The Court
will rule on the motion as one for summary judgment, but not as one for summary
adjudication. If there are triable
issues as to any cause of action in the cross-complaint, the motion will be
denied in its entirety.
d. Separate Statement
Defendants correctly note, in opposition to the motion, that Street’s
separate statement is fatally defective.
The defects go over and above the failure to comply with the Rules of
Court, mentioned above. Street consistently
refers to deposition testimony as a “material fact.” See facts 26-30, 34, 36, and 45-69. Pursuant to Reeves v. Safeway Stores, Inc.
(2004) 121 Cal.App.4th 95, 105-106, what someone said in deposition is
not a material fact. It may be evidence
of a material fact, but the statement itself is not the fact.
Street, in reply, argues Defendants were capable of responding to the evidence
and therefore this distinction is not meaningful. The Court disagrees. By way of example, Defendants point out the
fact that the deponent, Herrera, started working at the shop when she was ten
years old; thus, her testimony, as a minor, does not conclusively establish any
of the facts it purports to establish.
Street filed an amended separate statement with its reply papers. Street was required to submit a competent separate
statement with its moving, not reply, papers.
The Court has not considered the statement submitted with the reply.
e.
Conclusion
The motion is denied in light of the defective moving separate statement.
3. Trial
Setting Conference
The parties are reminded that there
is a TSC on calendar today concurrently with the hearing on the summary judgment
and adjudication motions. The Court asks
Counsel to make arrangements to appear remotely at the hearing on the motion
and the TSC.