Judge Michael P. Linfield, Case Number: 22STCV06223, Date: 2023-08-25 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV06223, Date: 2023-08-25 Tentative Ruling

Moving Party: Defendants David P. Kashani and Law Offices of David P Kashani, APLC

On February 18, 2022, Plaintiff Valerie Ann Barros filed her Complaint against Defendants David P. Kashani and Law Offices of David P. Kashani, APLC on a cause of action of general negligence.

On March 28, 2023, Defendants filed their Motion for Summary Judgment. Defendants concurrently filed: (1) Declaration of David P. Kashani; (2) Declaration of Christian R. Castro; (3) Separate Statement; (4) Request for Judicial Notice; and (5) Proof of Service.

On April 3, 2023, Defendants filed another Request for Judicial Notice in support of their Motion. The items requested are the same, but the later-filed Request for Judicial Notice attaches the items requested.

On July 14, 2023, Plaintiff filed her Opposition to the Motion. Plaintiff concurrently filed: (1) Declaration of Peter R. DiDonato; (2) Separate Statement; (3) Response to Defendants’ Separate Statement; (4) Request for Judicial Notice; and (5) Objections to Defendants’ Evidence.

On August 2, 2023, Defendants filed their Reply regarding the Motion. Defendants concurrently filed: (1) Reply regarding Defendant’s Separate Statement; (2) Reply regarding Plaintiff’s Separate Statement; (3) Objections to Evidence; (4) Proposed Order; and (5) Proof of Service.

Plaintiff filed evidentiary objections to Defendants’ evidence. The following are the Court’s rulings on these objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED

Defendant filed evidentiary objections to Plaintiff’s evidence. The following are the Court’s rulings on these objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5	SUSTAINED
6		OVERRULED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10		OVERRULED
11	SUSTAINED
12		OVERRULED
13	SUSTAINED
14	SUSTAINED
15		OVERRULED

Defendants request that the Court take judicial notice of these three items from the matter of Barros v. P.F. Chang’s China Bistro, in the Los Angeles Superior Court, Case Number 19STCV08586: (1) the Complaint; (2) the Motion for Summary Judgment filed by P.F. Chang’s China Bistro; and (3) the Order dated March 4, 2021.

Plaintiff requests that the Court take judicial notice of these three items from the matter of Barros v. P.F. Chang’s China Bistro, in the Los Angeles Superior Court, Case Number 19STCV08586: (1) Plaintiff’s Memorandum of Points and Authorities in support of the Motion for New Trial; (2) various declarations filed in support of the Motion for New Trial; and (3) the Notice of Ruling Denying the Motion for New Trial.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.” (Code Civ. Proc., § 437c, subd. (1)(a).)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850, citation omitted.)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474, [applying the summary judgment standards in Aguilar to motions for summary adjudication].)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, citation omitted.)

“The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder, supra, at p. 840, citations omitted; see also Weiss v. People ex rel. Dep’t of Transp. (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

“On a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320, citation omitted.)

Defendants move for summary judgment on the Complaint in favor of Defendants and against Plaintiff. (Motion, p. 17:2–3.) Defendants argue: (1) that Defendants are entitled to summary judgment because Plaintiff cannot establish the element of causation; and (2) that Plaintiff cannot prove any legally recoverable damage with the required legal certainty. (Id. at pp. 13:12–13, 16:19–20.)

Plaintiff opposes the Motion, arguing that she has presented facts that would defeat the Motion. (Opposition, p. 6:21.)

In their Reply, Defendants argue: (1) that Plaintiff cannot establish causation; (2) that Plaintiff’s stained dress does not create a triable issue of material fact as to the existence of a foreign substance on the floor of the P.F. Chang’s China Bistro; (3) that the witness’s opinion is inadmissible on the grounds that it is speculative and lacks foundation; (4) that Plaintiff’s stained dress does not create a triable issue of material fact as to P.F. Chang’s China Bistro’s knowledge of an alleged foreign substance; (5) that Plaintiff would not have prevailed at trial; and (6) that Defendant David P. Kashani’s admission of negligence is inadmissible as a matter of law. (Reply, pp. 3:6–7, 3:23–24, 5:16–17, 6:5–6, 7:9, 7:21–22.)

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, Defendants meet their initial burden by questioning whether additional evidence would have allowed Plaintiff to prove causation and damages in the underlying case.

Plaintiff points to the dress Defendants failed to submit to the Court in the earlier case as additional evidence that would have established causation and damages. The question of whether the consideration of additional evidence would have established causation and/or damages is a mixed question of law and fact that is not suitable for determination on a motion for summary judgment. As there is at least one material issue of triable fact, Plaintiff meets her subsequent burden.

The Court need not, and does not, reach further arguments about the admissibility of the witness’s opinion or Defendant David P. Kashani’s admission(s) of negligence.