Judge: Serena R. Murillo, Case: 19STCV01550, Date: 2022-08-29 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV01550    Hearing Date: August 29, 2022    Dept: 29

Teresa Ramos, et al. v. Leonor Valdivia, et al. 

TENTATIVE

Defendant Leonor Valdivia’s motion for summary judgment is GRANTED. 

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 facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c(p)(2).)  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 

“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, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).) 

Discussion 

As an initial matter, Plaintiffs filed an opposition, only arguing that they were not provided with the 75-day notice to prepare an opposition to the MSJ. On July 8, 2022, Plaintiffs were served by email with a notice that Defendant Leonor Valdivia's MSJ, which was originally set to be heard on June 13, 2023, would be heard 18 days later on July 26, 2022. Plaintiffs argue they timely filed an opposition to said motion because they were not given the required 75-day notice prior to the motion being heard. Consequently, Plaintiffs never commenced preparing an opposition to the MSJ. Subsequently, on July 15, 2022, Defendant's counsel emailed Plaintiffs' counsel, giving Plaintiffs' counsel notice that the summary judgment motion has been rescheduled to August 29, 2022.  Consequently, Plaintiffs argue, this only gave Plaintiffs' counsel 43 days’ notice.

First, the Court is not in receipt of any opposition to Defendant’s ex parte application seeking to advance the hearing on her motion for summary judgment. The Court also notes that Plaintiff was not in appearance at the hearing on the ex parte application to do so on June 20, 2022.

Moreover, CCP section 437c(a)(2) states: "Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” The proof of service on the motion for summary judgment shows it was filed and served on Plaintiff on February 1, 2022. As such, on the date appointed for hearing, e.g., July 26, 2022, Plaintiff was provided with 175 days’ notice.

Further, if Plaintiffs needed more time to prepare an opposition, they could have sought relief under CCP section 437(h), which provides: “If 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. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

However, Plaintiffs have chosen not to seek this relief.

First Cause of Action for Negligence 

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff.  (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) 

An owner or keeper of a domestic animal is liable for negligence where it is foreseeable that the characteristics of the animal would create a risk of harm and the owner or keeper fails to exercise reasonable care in controlling the animal to prevent harm.  (Drake v. Dean (1993) 15 Cal.App.4th 915, 925-30.) 

Defendant argues that Plaintiff cannot establish causation. Defendant presents evidence that Vildoso, the owner of the dogs, testified during his deposition that he arrived at Defendant's property around 11:30 a.m on February 9, 2017, and that while he was taking care of his dogs, he left the door that contains them within the Defendant's property ajar. (UMF No. 5.) The door does not have a lock on it, but according to Vildoso, the dogs would not have been strong enough to push open the door on their own. (UMF No. 6.) Defendant always kept the door closed. (UMF No. 6.) When Vildoso left the door open, he observed the dogs running towards the Plaintiff and was unable to stop them.

The Court finds that Defendant has met her burden on summary judgment to show that there are no triable issues of fact as to whether any act or omission on her part caused Plaintiff’s injuries. Defendant has set forth evidence that she always kept the door closed, and that the door, if closed, was strong enough to contain the dogs. Further, there is evidence that Vildoso left the door ajar when he was feeding the dogs, which then led to the dogs’ escape and Plaintiff’s injuries. As such, the burden shifts to Plaintiffs to show that there are triable issues of fact as to causation. However, Plaintiff’s opposition does not make any arguments as to the merits of their claims or provide any evidence. As such, the Court finds that Defendant is entitled to summary judgment.

Second Cause of Action for Loss of Consortium 

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”  (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.) 

As Defendant is entitled to judgment on the first cause of action for negligence, Defendant is also entitled to judgment on the second cause of action for loss of consortium. 

Conclusion