Judge Michelle C. Kim, Case 21STCV38636 2023-05-04 Tentative Ruling

Plaintiff Joseph Glyzewski (“Plaintiff”) filed this action against Defendants Stephen R Dixon and Stephen R Dixon Trust (collectively, “Defendants”) for injuries Plaintiff suffered while on Defendants’ premises to repair the air conditioners located on the roof. Plaintiff alleges that as he walked down the ladder from the roof to the floor below, the door hatch immediately slammed shut onto Plaintiff’s body causing him to suffer injuries. (Compl. at ¶¶ 10-11.) The complaint alleges causes of action for general negligence and premises liability.

Defendants now move for summary judgment, or alternatively, summary adjudication, as to Plaintiff’s complaint. Plaintiff opposes the motion, and Defendants filed a reply.[1]

Defendants assert that it is undisputed that Plaintiff was either an employee or independent contractor of Faith Air Conditioning & Heating (“Faith”), which was hired to perform work at Defendants’ property. Defendants contend that Plaintiff was in the course and scope of his employment with Faith at the time of the incident, so Plaintiff’s claims are barred under the Privette doctrine unless Plaintiff can establish an exception the doctrine. Defendants, however, contend that none of the exceptions to Privette apply in this case. Defendants assert that they exercised no control over the work being performed, and that there was no concealed dangerous condition at the premises.

Plaintiff argues that Defendants’ motion is untimely and procedurally defective because Defendants initially set their motion for hearing within 30 days of the previous trial date. Additionally, Plaintiff asserts that Privette does not apply because Defendants retained negligent control of the property and affirmatively contributed to Plaintiff’s injuries, as Defendants knew the roof hatch was in an unsafe condition and assumed the obligation of providing a safe jobsite for Plaintiff. Plaintiff asserts that Defendants actively opened the hatch and led Plaintiff up through the broken hatch. Plaintiff further argues that there are triable issues of fact as to whether the hatch was a concealed hazard. Alternatively, Plaintiff requests the motion be continued to allow Plaintiff to conduct further discovery pursuant to CCP § 437c(h). Plaintiff argues further evidence may exist and Plaintiff is awaiting the hearing date on his motion to compel further responses to discovery.

CCP § 437c(h) states: “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [internal quotations omitted].)

Consequently, if the opposing party shows by declaration that essential evidence “may exist but cannot, for reasons stated, be presented, the court shall deny the motion” or continue it for a reasonable period, or “make any other order as may be just.” (Code Civ. Proc., § 437c(h); see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395, [“[T]he policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. [Citation.]”].) An application by way of declaration to continue the motion may accompany the opposition papers or be made by ex parte motion any time on or before the date the opposition to the motion is due. (Code Civ. Proc., § 437c(h); see Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 CA4th 632, 644 (continuance request timely where made after filing of summary judgment motion since § 437c(h) “expressly contemplates” filing continuance request any time before “opposition response to the motion is due”).)

In this case, Plaintiff contends that Defendants precluded Plaintiff from obtaining relevant discovery, so material evidence to oppose Defendants’ motion may exist but has not been obtained because of Defendants’ discovery abuses. Plaintiff asserts that the parties have participated in multiple Informal Discovery Conferences, but the discovery issues between the parties have not been resolved. Further, Plaintiff asserts that defendant Stephen R Dixon refused to answer Plaintiff’s questions at Dixon’s deposition and failed to produce pertinent documents requested by Plaintiff. In particular, Plaintiff provides that Dixon refused to answer, or asserted meritless objections to, questions about the hatch and work being performed by Plaintiff at Defendants’ property. (Opp. Aghabala Decl. ¶ 21.) Additionally, Plaintiff avers documents relating to the roof hatch and witnesses to the incident, among others, exist but were not produced by Defendants.

Defendants, in reply, contend that Plaintiff’s assertions that Defendants have not cooperated in the discovery process are meritless, and that the issues raised by Plaintiff are irrelevant. However, Defendants do not dispute that Dixon did not answer questions relating to the hatch at his deposition, or that Defendants did not produce those documents identified by Plaintiff. Moreover, Plaintiff attests that he has reserved an Informal Discovery Conference and a motion to compel further deposition testimony to address these issues. Accordingly, there is discovery relating to the incident and subject roof hatch that has not been completed between the parties. The Court cannot state as a matter of law that evidence relating to the hatch would not be material to this motion as a matter of law.

Trial in this matter is currently set for October 18, 2023, so a continuance will not affect the trial date. Plaintiff must plan all discovery and motion practice accordingly. Plaintiff should promptly take steps necessary to prosecute his case with diligence, as the Court will not be inclined to grant further continuances of this motion.

Defendants’ motion for summary judgment is continued to ________________. Plaintiff must file a supplemental opposition no later than 16 court days before the hearing. Defendants must file any supplemental reply five court days before the continued hearing.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] Plaintiff initially filed his opposition on March 20, 2023. However, on March 21, 2023, Plaintiff filed an amended opposition and supporting papers. Therefore, the Court considers only the oppositions and supporting papers filed on March 21, 2023.