Judge: Thomas S. Mcconville, Case: 2020-01148790, Date: 2023-07-17 Tentative Ruling

Defendants OC Auto Imports, Inc. dba OC Autohaus and Wells Fargo Dealer Services’ motion for summary adjudication as to minor plaintiff Romeo Buenaventura, is MOOT as to defendant Wells Fargo Dealer Services, and DENIED as to defendant OC Auto Imports, Inc. dba OC Autohaus.  (Code Civ. Proc., § 437c [authorizing summary judgment / adjudication].)

The motion is MOOT as to defendant Wells Fargo Dealer Services, which has been dismissed.  (ROA 337.)

The motion is DENIED as to defendant OC Auto Imports, Inc. dba OC Autohaus, as this defendant has not met its initial burden of presenting evidence showing that plaintiff Romeo Buenaventura cannot establish an essential element of his claims, or that there is a complete defense.  (Code Civ. Proc., § 437c, subd. (p)(2) [burden].) 

First, this moving defendant cites no authority allowing summary judgment / adjudication based on a minor’s unrepresented status, particularly in a case such as this where the defect is curable.  (See Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 512-513 [abuse of discretion for trial court to enter judgment against suspended corporation; “the normal practice is for the trial court to permit a short continuance” to allow the suspended corporation an opportunity for reinstatement].)  Further, this moving defendant did not raise lack of capacity at the “earliest opportunity,” nor is there any record that this moving defendant has sought to amend its answer to allege lack of capacity as an affirmative defense.  (See Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604 [a plea in abatement is disfavored, and is a “technical objection and must be pleaded specifically”].)

Second, this moving party’s evidence is insufficient to show that plaintiff cannot establish the essential element of causation.  Moving party only presents evidence by Dr. Chana Chin on this point; however, there is no evidence that Dr. Chin treated plaintiff for the asthma attack alleged in the Complaint, or that such attack was not precipitated by mold exposure.  Nor is there evidence presented by the moving party that Dr. Chin is the sole medical professional who treated and/or diagnosed the plaintiff.  Further, Dr. Chin testified that plaintiff tested negative for “alterneria,” “aspergillus,” and “cladosporium” (Ex. C at 13:4-18); however, there is no evidence that the alleged mold in the subject vehicle was one of these varieties.  Finally, Dr. Chin testified that the testing performed showed “a possibility of having a dog allergy and also having mold … it's a possibility that's a bit of a response to dog and mold.”  (Ex. C at 12:12-18; see also Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 241, FN 6 [“The moving party's evidence alone may establish a triable issue of fact”].)

Moving party’s request for judicial notice is DENIED.  (Evid. Code 453, subds. (a), (b); Cal. Rules of Court, Rule 3.1113, subd. (l), and Rule 3.1306, subd. (c).) 

Moving Party shall give notice.