Judge: Robert B. Broadbelt, Case: 19STCV15278, Date: 2023-08-16 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV15278    Hearing Date: August 16, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Royal Porter McHenry

RESPONDING PARTIES:     Defendants Mama Shelter, Inc., Yannick Herry (erroneously identified as Henry Yannick), and Benjamin Trigano  

Motion for Summary Judgment

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

EVIDENTIARY OBJECTIONS 

The court notes that defendants Mama Shelter, Inc., Yannick Herry, and Benjamin Trigano’s evidentiary objections, filed on August 2, 2023, have erroneously labeled the final three objections as number “8.”  The court therefore rules on the objections in numerical order as follows:

The court sustains Objections Nos. 1-8, and 10.

            The court overrules Objection No. 9.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  For the purposes of motion for summary judgment and summary adjudication, “[a] plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(1).)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Plaintiff Royal Porter McHenry (“Plaintiff”) moves the court for an order granting summary judgment on his Complaint, filed against defendants Mama Shelter, Inc. (“Mama Shelter”), Yannick Herry (“Herry”), Benjamin Trigano (“Trigano”), (collectively, “Defendants”) and Vincent Lopez.[1]  

The court notes that Plaintiff first filed, on October 28, 2022, a “Notice and Motion for Summary Judgment,” and thereafter, on November 2, 2022, filed a “Notice for Summary Judgment.”  It appears that these two filings are substantially identical.  Thus, the court has considered the later-filed “Notice for Summary Judgment,” filed with the court on November 2, 2022.

The court finds that Plaintiff has not met his burden of showing that there is no defense to each cause of action alleged in Plaintiff’s Complaint and therefore finds that Plaintiff has not met his burden to show that he is entitled to summary judgment in his favor because Plaintiff has not submitted a separate statement that complies with the requirements of Code of Civil Procedure section 437c and California Rules of Court, rule 3.1350.  (Code Civ. Proc., § 437c, subd. (b)(1).)

A separate statement must “set[] forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.”  (Code Civ. Proc., § 437, subd. (b)(1).)  It must separately identify (1) each cause of action that is the subject of the motion, and (2) each supporting material fact claimed to be without dispute with respect to the cause of action that is the subject of the motion.  (Cal. Rules of Ct., rule 3.1350, subd. (d)(1).)  The separate statement must also be in a two-column format and include the evidence that establishes those undisputed material facts in the same column.  (Cal. Rules of Ct., rule 3.1350, subd. (d)(2).)  “‘The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.’”  (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477.)  “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.”  (Code Civ. Proc., § 437c, subd. (b)(1).)

Plaintiff has filed a separate statement with his moving papers.  In opposition, Defendants argue that Plaintiff’s motion is procedurally deficient because it is not supported by a separate statement that adequately sets forth each material fact on which he bases the motion.  The court agrees and finds that Plaintiff has not complied with the requirements governing separate statements to be submitted in support of his motion for summary judgment.

First, the court finds that Plaintiff has not sufficiently cited to the evidence in support of each of his material facts.  “Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.”  (Cal. Rules of Ct., rule 3.1350, subd. (d)(3).)  For example, although Plaintiff has cited to various exhibits and the declaration of Michelle Kirk in support of the material fact labeled number 1 under the first cause of action for negligence, Plaintiff has not cited to the specific title, page, and line numbers of those exhibits and the declaration that support the material fact.  Plaintiff also did not reference the specific title, page, and line numbers of the exhibits in support of the material facts set forth under the second cause of action for intentional tort.

Second, the court finds that Plaintiff has improperly included assertions under sections labeled “Defendant’s opposing response/evidence,” “Plaintiff’s Opposing Statement,” and “Opposing Statement by Plaintiff.”  The separate statement does not permit Plaintiff (1) to complete the second column of the separate statement on behalf of Defendants as opposing parties, or (2) to include his own opposing statements in response to evidence that was previously filed by Defendants.  (Cal. Rules of Ct., rule 3.1350, subds. (f), (h).)

Third, the court finds that the separate statement does not conform to the two-column format as set forth in California Rules of Court, rule 3.1350 because Plaintiff did not “state in numerical sequence the undisputed material facts in the first column” by failing to number each material fact.  (Cal. Rules of Ct., rule 3.1350, subds. (d)(3), (h).)

Thus, the court finds that the separate statement is deficient and fails to comply with the requirements set forth in Code of Civil Procedure section 437c and California Rules of Court, rule 3.1350, such that the court and Defendants have not been put on notice as to (1) what Plaintiff contends are the material facts that support granting summary judgment in his favor, and (2) the evidence relied on by Plaintiff in support of those facts.

 “‘Section 437c is a complicated statute.  There is little flexibility in the procedural imperatives of the section, and the issues raised by a motion for summary judgment (or summary adjudication) are pure questions of law.  As a result, section 437c is unforgiving; a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.’”   (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 949.)  The court finds that Plaintiff has not met his burden to show that he is entitled to judgment as a matter of law on both of his causes of action for negligence and intentional tort by failing to file with the court and serve on Defendants a separate statement that meets the requirements set forth in statute and the California Rules of Court.  This failure violates Defendants’ due process rights to be apprised of the facts and evidence on which Plaintiff moves for summary judgment against them.  (Zimmerman, Rosenfeld, Gersh & Leeds LLP, supra, 131 Cal.App.4th at p. 1477.)

The court therefore exercises its discretion to deny Plaintiff’s motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (b)(1).)

ORDER

The court denies plaintiff Royal Porter McHenry’s motion for summary judgment.

The court orders defendants Mama Shelter, Inc., Yannick Herry, and Benjamin Trigano to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 16, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court