Judge: Robert P. Dahlquist, Case: 37-2022-00013158-CU-PO-NC, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 18, 2024

01/19/2024  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00013158-CU-PO-NC BARASCOUT VS BKM DEL ABETO 242 LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Amended Motion, 09/21/2023

Defendant/cross-defendant Millenium Medical Technologies, Inc.'s (MMT) motion for summary judgment, or in the alternative, summary adjudication, (ROA # 122) is denied.

Defendant's request for judicial notice dated September 21, 2023 (ROA # 135) is granted in part. The court takes judicial notice of the existence and content of the Contractor's License Detail for License # 315638. The court does not take judicial notice of the licensure status of Ontario Refrigeration Service Inc. as of the time of the incident in question. The Contractor's License Detail does not show the licensure status as of the time of the incident.

The court rules on plaintiff Alan Barascout's evidentiary objections (ROA # 157) as follows: Objection #1: sustained Objection #2: sustained Objection #3: sustained Objection #4: overruled Objection #5: sustained Objection #6: sustained Objection #7: sustained Objection #8: overruled Objection #9: overruled Objection #10: sustained Objection #11: sustained Objection #12: overruled Objection #13: sustained Objection #14: sustained Objection #15: sustained Objection #16: overruled The court overrules defendant MMT's evidentiary objections (ROA # 167).

Defendant MMT moves for summary judgment on the basis that it has a complete defense under the Privette doctrine. Privette v. Superior Court (1993) 5 Cal.4th 689. Plaintiff opposes the motion on the basis that (1) MMT failed to meet its initial burden under Privette, and (2) there are triable issues of material fact relating to certain exceptions to the Privette doctrine.

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3065184 CASE NUMBER: CASE TITLE:  BARASCOUT VS BKM DEL ABETO 242 LLC [IMAGED]  37-2022-00013158-CU-PO-NC 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.

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.

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.

Here, the motion must be denied because plaintiff has properly disputed several of the facts contained in MMT's separate statement of facts. MMT's separate statement of undisputed material facts contains fifty-four facts. ROA # 136. Plaintiff disputes forty-four of these facts. ROA # 155. The conflicting evidence showing the existence of disputed facts is cited in the separate statements (ROA # 136 and 155). That evidence consists of the deposition testimony of Gregory Miles, Brian McWilliams, Linda Hawkins, Alan Barascout, Brian Arthun, the declaration of Linda Hawkins, the Commercial Lease, the Vendor Services Agreement and discovery responses.

The triable issues of fact include the following: (1) whether Ontario Refrigeration was licensed to perform work on the property at the time of the incident or that no license was required; (2) whether BKM was acting as MMT's agent in connection with the services provided by Ontario; and (3) whether MMT knew, or reasonably should have known, of a concealed preexisting hazardous condition. The evidence that creates these triable issues of material fact includes the deposition testimony of Linda Hawkins, Brian McWilliams, Alan Barascout, Brian Anthun, and Gary Miles, the declaration of Linda Hawkins, discovery responses, exhibits attached to the Notice of Lodgment (ROA # 125) and exhibits attached to the compendium of exhibits (ROA # 158).

For these reasons, MMT's motion for summary judgment is denied.

The request for summary adjudication is denied for the same reasons. In addition, the moving party's notice of motion and separate statement do not contain identical identification of the issues to be summarily adjudicated, as required by the Rules of Court. The request for summary adjudication is denied for this additional reason.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, January 19, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 19, 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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