Judge: Melissa R. Mccormick, Case: "Millfelt v. City of Seal Beach, et al.", Date: 2022-09-29 Tentative Ruling

Defendants Dale Self and Karen Self’s Motion for Summary Judgment

Defendants Dale Self and Karen Self move for summary judgment against the causes of action in plaintiff Donna Millfelt’s complaint.  For the following reasons, defendants’ motion is denied.

A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff’s claim.  It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law.  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.

Plaintiff alleges two causes of action (for negligence and premises liability) against defendants Dale Self and Karen Self.  Plaintiff’s claims arise from plaintiff’s trip and fall on a curb defendants built on defendants’ property in the City of Seal Beach.

Defendants argue summary judgment should be granted in their favor because the curb was open and obvious and because the City approved defendants’ construction of the curb.  Plaintiff has presented evidence demonstrating triable issues of material fact with respect to both of these arguments.  As to the former contention, plaintiff presented evidence defendant Dale Self testified at deposition he has seen people walking in the alley behind his home “all day long,” the curb could impede pedestrians under some circumstances, and numerous vehicles have hit and/or run over the curb.  See, e.g., Plaintiff’s Responsive Separate Statement Nos. 47, 50, 53 (and evidence cited therein).

As to the latter contention, defendants did not submit admissible evidence the City approved the curb.  To the extent defendants rely on Dale Self’s declaration (paragraph 11), the declaration does not demonstrate any foundation for Dale Self’s statements.  To the extent defendants rely on the copy of a “City of Seal Beach construction checklist sign-offs/Occupancy Permit” of which defendants seek judicial notice, the document (which is actually several pages of different documents) is not the proper subject of judicial notice.  The document(s) also does not refer to City approval of the curb.

Defendants’ request for judicial notice of a “City of Seal Beach construction checklist sign-offs/Occupancy Permit” is denied.  The document is not the proper subject of judicial notice. Defendants’ unopposed request for judicial notice of a copy of the “U.S. Naval Observatory Table showing sunrise and sunset times for 2019 for Seal Beach, California” is granted.

Defendants’ evidentiary objections were not material to the disposition of the motion.  Cal. Civ. Proc. Code § 437c(q).

Plaintiff to give notice.