Judge: Mark C. Kim, Case: 20STCV28177, Date: 2022-09-08 Tentative Ruling



Case Number: 20STCV28177    Hearing Date: September 8, 2022    Dept: S27

1.     Background Facts

Plaintiff, Everett Parker filed this action against Defendants, DJO, LLC, Rikco Internationa, LLC, Hanger, Inc., Hanger Prosthetics & Orthotics West, Inc., and Hanger Prosthetics & Orthotics, Inc. for negligence, breach of the implied warranty of merchantability, breach of the implied warranty of fitness, and negligence – strict products liability.    

 

Plaintiff alleges that he is diabetic and purchased shoes designed, manufactured, distributed, and/or sold by Defendants.  He alleges he suffered blisters caused by the shoes, and the blisters caused medical staff to remove the tip of his big toe as well as substantial amounts of damaged skin, which has left huge gashes on his feet. 

 

 

2.     Motion for Summary Judgment

a.     Relief Sought

Defendant, Hanger Prosthetics & Orthotics West, Inc. dba Hanger Clinic (hereafter “Hanger”) moves for summary judgment on Plaintiff’s complaint.  Alternatively, it moves for summary adjudication of six issues. 

 

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: Notice

Hanger originally filed its moving papers on 4/08/22 and set its motion for hearing on 6/28/22 in Department 32 of the Personal Injury Hub Court.  On 5/24/22, the hub court deemed the action complicated and transferred it for all further proceedings to this department.  On 7/13/22, the parties appeared at a CMC.  The Court advised the parties to re-set all previously scheduled hearing dates using the online reservation management system.  On 7/21/22, Hanger gave notice that it was rescheduling the hearing on its motion for 9/08/22. 

 

Plaintiff argues the motion should be denied outright because 7/21/22 was not 75 days prior to 9/08/22.  Defendant argues Plaintiff had 153 days to prepare opposition, and the 7/21/22 document was merely an amended notice. 

 

Neither party cites a case directly on point.  Pursuant to Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268, insufficient notice cannot be cured by way of a court-ordered continuance.  In this case, however, the original notice was sufficient.  The motion, however, was taken off calendar over a month before the motion was heard, and before Plaintiff had opposed the motion. 

 

If the Court were to deny the motion due to insufficient notice, the Court would be inclined to continue the FSC and trial dates and allow Defendant to re-notice its motion.  Because Plaintiff has fully briefed the issues on their merits, this does not seem to serve any party’s interests.  In light of the lack of direct, on-point authority, and the fact that Plaintiff fully briefed the merits of the motion, the Court will rule on the motion on its merits.

 

d.     Evidence

Hanger filed a Notice of Lodgment with its moving papers.  Hanger indicates it has lodged Exhibits A through R with its moving papers.  The Court does not have copies of these documents.  Additionally, the Court does not know of any authority permitting a moving party to lodge, as opposed to file, documents necessary to support a summary judgment motion. 

 

The Court cannot determine whether Hanger met its moving burden on the motion without copies of the evidence that supports the motion.  The Court is continuing the hearing on the motion for to 10/20/22, to be heard concurrently with Co-Defendant, DJO, LLC’s summary judgment motion. 

 

Hanger must file all of its evidence at least two weeks prior to the continued hearing date.  Hanger must ensure the filing complies with the general order for electronic filing insofar as it requires: “Declarations, Proofs of Service, and Exhibits to documents must be text searchable when technologically feasible without impairment of the document's image and must be bookmarked within the document pursuant to California Rules of Court, rule 3.1110(f)(4).”

 

CRC 3.1110(f)(4) provides, “(4) Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.”

 

The Court notes that Plaintiff’s opposition documents are not properly electronically tabbed.  Plaintiff must file amended documents with the proper tags at least two weeks prior to the continued hearing date.

 

Neither Hanger nor Plaintiff may file anything other than the exhibits with required tabs as a result of this continuance ruling.

 

If documents filed in connection with DJO’s motion do not comply with the electronic tabs requirement, the parties must fix those documents also. 

 

Hanger is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.