Judge: Robert P. Dahlquist, Case: 37-2020-00044662-CU-PT-NC, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 23, 2024

02/23/2024  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  Misc Complaints - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00044662-CU-PT-NC MILLER VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 12/07/2023

Defendant County of San Diego's motion for summary adjudication or summary judgment (ROA # 111) is denied.

The County's evidentiary objections (ROA # 126) are overruled. Plaintiff Kwayde Miller's evidentiary objections to the Shaffer declaration and attached exhibits (ROA # 124) are overruled. Plaintiff's evidentiary objections to evidence submitted by the County in reply papers (ROA # 132) are sustained.

In this instance, the court will not consider evidence submitted with the reply papers. See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal. App. 4th 308, 316.

On April 22, 2021, plaintiff Kwayde Miller filed a complaint asserting claims of negligence and dangerous condition arising from injuries sustained by plaintiff when a vehicle driven by defendant Helen Elson struck plaintiff. Plaintiff alleges that he was riding his motorcycle when defendant Elson failed to yield the right-of-way for oncoming traffic and attempted to make a left turn directly in the path of the plaintiff.

Plaintiff was injured as a result of the accident. Complaint (ROA # 1).

The County moves for summary judgment on the issue of notice and failure to warn. Alternatively, County seeks summary adjudication of three issues: (1) County did not have actual notice of any alleged dangerous condition; (2) County did not have constructive notice of any alleged dangerous condition; and (3) plaintiff has failed to raise a triable issue of material fact regarding County's failure to warn of a dangerous condition. ROA # 111. Plaintiff opposes the motion. ROA # 119.

In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party has shown facts justifying a judgment in movant's favor; and (3) determine whether the opposing party has demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.

In ruling on a summary judgment motion, the court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97. Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.

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3043946 CASE NUMBER: CASE TITLE:  MILLER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00044662-CU-PT-NC The inclusion of a fact in the moving party's separate statement concedes that the fact is material. Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 252.) As such, if a triable issue is raised as to any facts in the separate statement with respect to an issue, then the motion must be denied. Id.; see also Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal. App. 5th 506, 521. The motion must be denied because plaintiff has properly disputed each of the facts contained in County's separate statement of facts. See ROA # 120.

The court has carefully considered the arguments, authorities and evidence presented by the parties.

The facts set forth in the County's separate statement of undisputed material facts (ROA # 115), standing alone, do not show that the County is entitled to summary judgment or summary adjudication.

The County's separate statement contains only three facts. Those three facts do not show that the County is entitled to summary judgment or summary adjudication. As such, the County has failed to sustain its burden on this motion and the burden does not shift to plaintiff to show the existence of a triable issue of material fact.

Assuming hypothetically that the burden shifts to plaintiff to show the existence of a triable issue of material fact, the court finds that plaintiff has met that burden. Plaintiff has presented evidence showing the existence of triable issues of fact as to: (1) whether the County had actual notice of a dangerous condition; (2) whether the County had constructive notice of a dangerous condition; and (3) whether the County failed to warn of a dangerous condition.

The evidence that creates the triable issues of material fact includes the declarations of Karel Shaffer (ROA # 113), David Bosse (ROA # 121, Exhibit 7), Coleen Bosse (ROA # 121, Exhibit 6), Edward Ruzak (ROA # 121, Exhibit 8), Stephen Plourd (ROA # 121, Exhibit 9) and the deposition testimony of Rebecca Draper (ROA # 121, Exhibit 2), Karel Schaffer (ROA # 121, Exhibit 3), Coleen Bosse (ROA # 121, Exhibit 4 and ROA # 131), and David Bosse (ROA # 121, Exhibit 5) and the evidence attached to the Notice of Lodgment dated February 16, 2024 (ROA # 129).

For these reasons, the motion for summary adjudication or summary judgment is denied.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, February 23, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of February 23, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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