Judge: Melissa R. Mccormick, Case: "Arnold v. Bulk Handling Systems, et al.", Date: 2022-10-20 Tentative Ruling

Defendant Midwest Recycling Services and Sales, Inc.’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

Defendant Midwest Recycling Services and Sales, Inc. moves for summary judgment or, in the alternative, summary adjudication against plaintiffs Lisa Arnold and the Estate of Richard Arnold’s complaint.  For the following reasons, defendant’s motion is denied.

Plaintiffs’ request to continue the summary judgment hearing is denied.  Plaintiffs state they have not yet obtained complete discovery from Decedent’s employer Republic Services.  Plaintiffs state they served Republic Services with a subpoena in January 2021 and “re-issued” the subpoena in June 2021; Republic Services served objections to the “re-issued” subpoena in July 2021 and did not produce any responsive documents.  In September 2022 plaintiffs noticed Republic Services’ deposition.  Plaintiffs do not explain their apparent failure to address Republic Services’ objections to the June 2021 subpoena nor do plaintiffs explain their delay in noticing Republic Services’ deposition.  In sum, plaintiffs have not demonstrated that they could not have obtained discovery from Republic Services sooner.  Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 156 (“a party who seeks a continuance under section 437c, subdivision (h), must show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner”).  Moreover, plaintiff’s counsel’s declaration does not demonstrate “that facts essential to justify opposition [to the motion] may exist.”  Cal. Civ. Proc. Code § 437c(h).

Plaintiffs also argue the court should deny defendant’s motion pursuant to section 473(b) because “any delay” in obtaining discovery was due to plaintiffs’ counsel’s lack of diligence, which plaintiffs characterize as “mistake, inadvertence, surprise, or excusable neglect.”  Assuming arguendo section 473(b) applies here, plaintiffs’ counsel’s declaration does not demonstrate that plaintiffs’ failure to conduct discovery was due to counsel’s mistake, inadvertence, surprise, or excusable neglect.  Counsel states the prior “handling attorney” left plaintiffs’ counsel’s firm in late July 2022 and present counsel joined the case at that time.  These events, which occurred before defendant filed and served the instant motion, do not explain plaintiffs’ failure to conduct discovery, e.g., once plaintiffs received defendant’s motion.

A defendant seeking summary judgment bears its burden of showing that a cause of action has no merit if the defendant shows that one or more elements of the cause of action cannot be established, or that the defendant has a complete defense to the cause of action.  Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. 

If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied.  Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.  If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact.  Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal.4th at 850-51.

By means of a Doe amendment filed June 18, 2021 plaintiffs’ complaint alleges three causes of action against defendant (Doe 11):  negligence; negligent hiring, supervision, or retention; and “survival action.”  Plaintiffs allege that in May 2018 plaintiff Lisa Arnold’s husband (Decedent) sustained injuries at work from which Decedent ultimately passed away in June 2019.  Complaint ¶ 1.  Plaintiffs allege that while working inside an “MB10 drum machine” Decedent “was struck by a belt that was propelled toward him.”  Id.  Defendant argues Decedent’s injuries were not caused by defendant or its employees (Issue Nos. 1 and 3), that defendant did not negligently hire, supervise, or retain any employee whose conduct caused harm to Decedent (Issue No. 2), and that the statute of limitations bars plaintiffs’ survival claim (Issue No. 3).

Defendant argues undisputed facts show Decedent injured himself at work lifting a heavy object, not by being struck by a belt in an MB10 drum machine.  Defendant relies for this argument on a handful of pages from Decedent’s medical records produced by plaintiffs in discovery.  Defendant contends statements attributed to Decedent in the medical records show Decedent was not injured by a belt in an MB10 drum machine.  These documents are not properly authenticated.  In addition, these documents contain levels of hearsay, and defendant has not laid a foundation for a hearsay exception for every level of hearsay.  Defendant has not carried its initial burden on Issue Nos. 1 and 3.  

Defendant has not presented any evidence supporting its contention it did not negligently hire, supervise, or retain any employee whose conduct caused harm to Decedent and thus has not carried its initial burden on Issue No. 2.

Defendant also contends as part of Issue No. 3 that the statute of limitations bars plaintiffs’ survival cause of action.  Defendant asserts the applicable statute of limitations for plaintiffs’ survivor claim is two years (Cal. Civ. Proc. Code § 335.1), and that pursuant to Civil Procedure Code section 366.1, the action may have been timely filed before the expiration of the later of (a) six months after Decedent’s death, or (b) the limitations period that would have applied if Decedent had not died.

Plaintiffs alleged Decedent suffered the injuries that resulted in his death on May 9, 2018.  Complaint ¶ 44.  Decedent died on June 29, 2019.  Plaintiffs’ Responsive Separate Statement No 11.  Plaintiffs filed this lawsuit on May 26, 2020, and added defendant as Doe 11 on June 18, 2021.  Several weeks in 2020 were deemed holidays for purposes of Civil Procedure Code sections 12 and 12a due to the COVID-19 pandemic and related court closures. 

When a plaintiff is ignorant of the name of a defendant and the plaintiff “state[s] that fact in the complaint . . . such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.”  Civ. Proc. Code § 474.  Defendant provides no evidence or argument plaintiffs’ Doe amendment did not satisfy section 474, and no evidence regarding when plaintiffs discovered defendant’s identity.  See, e.g., McClatchey v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-72.  Even assuming defendant may properly combine two issues into one issue for purposes of summary adjudication, defendant has not met its initial burden on this part of Issue No. 3.  

Defendant’s evidentiary objections to paragraphs 3(b) and 3(c) of the Lisa Arnold Declaration are sustained.

Plaintiffs to give notice.