Judge: Nick A. Dourbetas, Case: 2020-01153211, Date: 2022-08-12 Tentative Ruling

1. Motion for Summary Judgment and/or Adjudication

2. Motion for Sanctions

Motion for Summary Judgment:

The motion by defendants / cross-defendants / cross-complaints Michael D. Mooslin and Nancy C. Mooslin, individually and as trustees of the Mooslin Family Trust dated January 27, 1998, is GRANTED in part and DENIED in part.  (Code Civ. Proc., § 437c [authorizing motion].)

The motion is GRANTED as to plaintiff Karen Marie Bruno on the Complaint, as moving parties have presented evidence that plaintiff cannot establish the essential elements of breach and causation; plaintiff has filed a notice of non-opposition and has not provided evidence meeting her shifted burden of providing evidence sufficient to create a triable issue of material fact.  (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [elements of premises liability]; Moving Parties’ Separate Statement, Fact Nos. 31, 48, 51, 55, 57-59, 65.)

The remainder of the motion is DENIED.  First, the proof of service is defective, as “[t]he electronic service address … of the person making the electronic service” is missing.  (Code Civ. Proc., § 1013b, subd. (b)(1).)  Plaintiff has filed a responsive pleading on the merits, waiving this defect as to her (Carlton v. Quint (2000) 77 Cal.App.4th 690, 698); however, no other party has waived this service defect in this manner.  Second, other than plaintiff, the notice of motion fails to identify the parties to whom the motion is addressed.  (Cal. Rules of Court, Rule 3.1112, subd. (d)(2).)  Third, the notice of motion and separate statement do not comply with Cal. Rules of Court, Rule 3.1350, subds. (b) and (d) as to parties other than plaintiff.

Moving parties shall give notice.

Motion for Sanctions:

Plaintiff Karen Marie Bruno’s motion for sanctions pursuant to Code Civ. Proc., § 128.7, is DENIED. 

Moving plaintiff fails to show that the prior motion for summary judgment / adjudication filed by defendant Reynaldo Anaya Mejia dba Ray’s Concrete Systems violated Code Civ. Proc., § 128.7, subd. (b). 

Rather, both parties’ evidence in connection with the instant motion shows that at the time the motion for summary judgment was filed, the available evidence indicated that the area where plaintiff fell was “wet,” without distinguishing whether the concrete was soft “like butter” or whether it was hard with a slippery substance on top.  (Complaint, Para. 24 [alleging plaintiff stepped “into” wet cement]; De Loa Decl., Paras. 8 and 9, and Defendants’ Exs. 2 and 3 [plaintiff’s Special Interrogatory Responses stating she stepped “in” wet cement]; Defendants’ Ex. 4 at 36:11-13 [plaintiff’s deposition testimony that the concrete was “like butter”]; Plaintiff’s Ex. 1 at 30:11- 31:3 [witness Cassesso’s deposition testimony that “the guys had just sprayed the cement” and that plaintiff slipped on “whatever that liquid was”].)  Thus, plaintiff has not shown that the summary judgment motion was filed without legal or evidentiary support.  (Code Civ. Proc., § 128.7, subds. (b)(2), (b)(3).)

Further, plaintiff fails to show that the summary judgment motion was filed primarily for an improper purpose.  (Code Civ. Proc., § 128.7, subd. (b)(1); Vrastil Decl., ¶¶ 9 and 10; De Loa Decl., ¶¶ 38, 44; Giannetta Decl., ¶¶ 3-6.)

Defendant Reynaldo Anaya Mejia dba Ray’s Concrete Systems shall give notice.