Judge: Mark C. Kim, Case: BC716805, Date: 2022-08-16 Tentative Ruling
Case Number: BC716805 Hearing Date: August 16, 2022 Dept: S27
1.
Background Facts
Plaintiffs, Sophia Sanchez, et al. filed this action against
Defendants, Ultramar, Inc., et al. for wrongful death and related claims
arising out of the death of Decedent, Jason Alexander Sanchez. Plaintiffs alleges Defendants are responsible
for Decedent’s death, which was caused by an electrocution while performing preventative
maintenance at an oil refinery.
Plaintiffs’ operative complaint is their Third Amended Complaint, which
was filed on 10/08/20. It includes
causes of action for negligence and negligence per se – wrongful death, survival,
products liability (strict), and products liability (negligence).
2.
Motion for Summary Judgment
a.
Parties’ Positions
Brinderson moves for summary judgment,
contending it is entitled to judgment as a matter of law because (a) Plaintiffs
have served factually devoid discovery responses as to it, and (b) it was not
negligent.
Ultramar opposes the motion. It argues there are triable issues of material
fact concerning whether Brinderson, through its employees, knew or should have
known there was a missing neutral wire when Brinderson was performing its
work. It indicates it brings its opposition
to rebut any purported argument that, should Brinderson be found to have a
duty, that duty should somehow transfer to, or impute liability to, Ultramar,
which it contends would be inappropriate under the Privette doctrine.
Plaintiffs filed a brief in
response to Ultramar’s opposition to the motion. Plaintiffs indicate they do not oppose the motion,
and they argue Ultramar’s liability to Plaintiffs, under Privette or otherwise,
is not before the Court and should not be considered.
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.
[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) 231 Cal.Rptr.3d.
814, 819-820.
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.
Moving Burden
Brinderson met its moving burden to
show it is entitled to judgment as a matter of law, both under Union Bank (which
permits a moving party to shift the burden through factually devoid discovery responses),
and also because it provides direct evidence that it was not negligent.
Plaintiffs expressly do not oppose the
motion; only Ultramar does. Notably, the
motion is not directed at any cross-complaint between Brinderson and Ultramar;
it is only directed at the complaint. Thus,
the issues on this motion run between Plaintiffs and Brinderson, not between
Brinderson and Ultramar. Ultramar is free
to make any arguments it wishes in connection with its own defense of this
action, and/or in connection with any cross-complaint it may have filed against
Brinderson or anyone else. Ultramar lacks
standing, however, to oppose summary judgment on Plaintiffs’ complaint.
The motion is therefore
granted. The Court declines to rule on
Ultramar’s evidentiary objections, as doing so is not necessary to a resolution
of the merits of the motion.
Brinderson 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.