Judge: Melissa R. Mccormick, Case: "Pham v. Mehr Group of Company Holdings, Inc.", Date: 2022-11-03 Tentative Ruling

Intervenor and Cross-complainant Ohio Security Insurance Company’s Motion for Summary Judgment

Intervenor and cross-complainant Ohio Security Insurance Company (OSIC) moves for summary judgment in its favor and on behalf of defendant Mehr Group of Companies Holding against plaintiff Hong Hoa Pham’s complaint.  For the following reasons, OSIC’s motion is denied.

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.

As an initial matter, OSIC served defendant Diem Phuong Nguyen with the motion less than 75 days before the noticed hearing date.  ROA 186.  A motion for summary judgment or summary adjudication must be served “on all other parties” at least 75 days before the motion hearing; the 75-day notice period is increased by five days if the notice is served by mail to an address within the State of California.  Cal. Civ. Proc. Code § 437c(a)(2) (“Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.  If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California . . . .”).  Thus, the motion is denied for insufficient notice.

It is also debatable whether OSIC timely filed its motion.  See 6/27/22, 7/27/22 & 10/24/22 Orders.  Because the court concludes below OSIC did not carry its initial burden on the motion, the court need not resolve whether OSIC’s motion was timely filed.  See, e.g., Green v. Bristol Myers Co. (1988) 206 Cal.App.3d 604, 609; see also Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1765 n.4; Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529.

Plaintiff’s complaint alleges one cause of action for negligence.  Plaintiff alleges defendant Diem Phuong Nguyen negligently performed an upper eyelid procedure on plaintiff, which left plaintiff with permanent damage to her eye openings.  Plaintiff alleges Mehr failed to adequately supervise Nguyen.  OSIC contends Mehr did not owe plaintiff any duty, and that plaintiff cannot prove Mehr’s alleged negligence caused plaintiff’s damages. 

The elements of a negligence claim are:  (i) a legal duty to use due care; (ii) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury.  Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. 

OSIC argues Nguyen was an independent aesthetician not employed by Mehr.  OSIC asserts Mehr does business as Optima Salon Suites and licensed studio space to Nguyen.  OSIC relies for this argument on a “Studio License Agreement” attached as Exhibit B to OSIC’s counsel’s declaration.  See Brislin Decl. ¶ 4 & Ex. B; see also OSIC’s Separate Statement Nos. 1-5.  Counsel’s declaration states no facts properly authenticating Exhibit B.  As Exhibit B is the only evidence OSIC has submitted in support of its motion (see OSIC’s Separate Statement Nos. 1-5), and OSIC has not properly authenticated the document, OSIC has not carried its initial burden of showing that plaintiff’s cause of action has no merit or that OSIC has a complete defense to the cause of action.

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

Plaintiff to give notice.