On 05/17/2016 LYDIA DOLORES KANEY filed a Personal Injury - Other Personal Injury lawsuit against MARYLIN MAZZA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
KANEY LYDIA DOLORES
DOES 1 TO 100 INCLUSIVE
CASSELL SHIRLEY B. DOE 56
GEOULLA DANIEL D. ESQ.
GILERMAN GABRIELLE RACHEL
AVAKIAN ARMEN ALEXANDER
MACKEY ROBERT THOMAS
4/27/2018: Minute Order
5/2/2018: SUMMONS CROSS-COMPLAINT
7/17/2018: NOTICE OF NON-OPPOSITION TO DEFENDANT'S MOTION TO CONTINUE TRIAL AND ALL TRIAL-RELATED DATES
7/18/2018: PLAINTIFF'S OPPOSITION TO MOTION TO CONTINUE TRIAL
8/21/2018: Supplemental Declaration
10/9/2018: Ex Parte Application
12/24/2018: Minute Order
2/22/2019: Minute Order
2/22/2019: Ex Parte Application
3/29/2019: Motion for Summary Judgment
Notice of Ruling; Filed by Lydia Dolores Kaney (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal (Failure to Prosecute within 3yrs) - Not Held - Taken Off Calendar by CourtRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Hearing on Ex Parte Application (to continue the motion for summary judgment and motion for sanctions hearing dates and the motion for summary judgment opposition dates) - HeldRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Hearing on Ex Parte Application (to Continue the Motion for Summary Judgment Hearing Dates and the Motion for Summary Judgment Opposition Dates) - Held - Motion GrantedRead MoreRead Less
PLAINTIFF?S EX PARTE APPLICATION TO CONTINUE THE MOTION FOR SUMMARY JUDGMENT AND MOTION FOR SANCTIONS HEARING DATES AND THE MOTION FOR SUMMARY JUDGMENT OPPOSITION DATES; Filed by Lydia Dolores Kaney (Plaintiff)Read MoreRead Less
Minute Order ( (Hearing on Ex Parte Application to continue the motion for su...)); Filed by ClerkRead MoreRead Less
Order (By the Court Granting Ex Parte Application to Continue the Motion for Summary Judgment Hearing Date and the Motion for Summary Judgment Dates); Filed by Lydia Dolores Kaney (Plaintiff)Read MoreRead Less
at 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) - HeldRead MoreRead Less
Minute Order ( (Hearing on Motion for Determination of Good Faith Settlement ...)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Continued - Party's MotionRead MoreRead Less
Receipt; Filed by Cassell, Shirley B. (Doe 56) (Defendant)Read MoreRead Less
Demand for Jury Trial; Filed by Cassell, Shirley B. (Doe 56) (Defendant)Read MoreRead Less
Answer; Filed by Cassell, Shirley B. (Doe 56) (Defendant)Read MoreRead Less
CIVIL DEPOSITRead MoreRead Less
ANSWER TO COMPLAINTRead MoreRead Less
Amendment to Complaint; Filed by Lydia Dolores Kaney (Plaintiff)Read MoreRead Less
Amendment to Complaint (Fictitious Name)Read MoreRead Less
ComplaintRead MoreRead Less
Summons; Filed by Lydia Dolores Kaney (Plaintiff)Read MoreRead Less
Complaint; Filed by Lydia Dolores Kaney (Plaintiff)Read MoreRead Less
Case Number: BC619247 Hearing Date: October 29, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
LYDIA DOLORES KANEY,
MARYLIN MAZZA, et al.,
Case No.: BC619247
[TENTATIVE] ORDER DENYING MOTION FOR A NEW TRIAL
October 29, 2019
1. Background Facts
Plaintiff, Lydia Dolores Kaney filed this action against Defendants, Marylin Mazza and Shirley Cassell for damages arising out of a fall that occurred in a home rented by Mazza and owned by Cassell. Plaintiff sustained serious injuries as a result of the fall. Each of the defendants has filed a cross-complaint against the other defendant.
On 5/07/19, the Court granted a motion for determination of good faith settlement. The Court found a $300,000 settlement between Plaintiff and Mazza was in good faith.
2. 9/10/19 Motion for Summary Judgment
On 9/10/19, the Court granted Defendant’s motion for summary judgment. The Court ruled as follows:
Cassell moves for summary judgment, contending (a) she had no duty to warn Plaintiff of the open and obvious condition of the steps, and (b) she had no notice that the steps were dangerous because her tenant failed to give her such notice. She also contends there were no code violations relating to the steps when she bought the property, and she was “grandfathered in” to the code as it existed at the time she purchased the property. Alternatively, she moves for summary judgment on the ground that Plaintiff cannot prove causation, as she does not remember how she fell.
a. Burdens on Summary Judgment
Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)
The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,
[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) See Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.
Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
b. Separate Statement
Plaintiff argues Defendant’s separate statement violates CRC 3.1350(d) and should be disregarded. 3.1350(d) applies to motions for summary adjudication, not motions for summary judgment. Defendant’s separate statement complies with 3.1350(h) as it relates to a motion for summary judgment, as opposed to adjudication. The Court will consider the motion on its merits.
c. Evidentiary Objections
Defendant submitted evidentiary objections with her reply to the opposition. The Court declines to rule on the objections, as doing so would not change the outcome of the motion. CCP §473c(q).
While the parties raise numerous arguments in support of and in opposition to the motion for summary judgment, the Court finds the causation issue is dispositive, and therefore will only rule on the causation issue.
A cause of action for premises liability includes the following essential elements: (1) the defendant owned, leased, occupied or controlled the subject premises; (2) the defendant was negligent in the use or maintenance of such premises; (3) that plaintiff was harmed; and (4) that defendant’s negligence was a substantial factor in causing plaintiff’s harm. CACI No. 1000.
Defendant’s fact 20 states, “Plaintiff does not remember falling, how she fell, or what caused her to fall.” This fact is undisputed. This fact is also supported by admissible evidence, in the form of Plaintiff’s own deposition testimony.
Plaintiff argues, in opposition to the fact, that it does not alter the analysis regarding breach of implied and statutory duties of maintenance and repair. Plaintiff is correct. The fact, however, is not intended to relate to duty or breach. The fact is intended to relate to causation, which is an element of a claim for negligence and also for premises liability, the sole two causes of action stated in the complaint.
When opposition to summary judgment is based entirely on inferences, such inferences must be “reasonably deducible from the evidence and not such as are derived from speculation, conjecture, imagination or guesswork.” Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647. Plaintiff herein has no idea how she fell. Thus, even if Defendant breached some duty to maintain or repair the stairs (an issue the Court declines to rule on), and even if the stairs were not open and obvious (an issue the Court also declines to rule on), Defendant met her initial burden to show Plaintiff lacks evidence that the state of the stairs caused the fall, and Plaintiff failed to raise a triable issue of material fact in this regard.
The motion for summary judgment is granted.
Moving Defendant is ordered to give notice.
3. Motion for New Trial
At this time, Plaintiff moves for a new trial. She contends she is entitled to a new trial due to (a) irregularity in the proceedings of the court, (b) accident or surprise, (c) newly discovered evidence, (d) excessive or inadequate damages, (e) insufficiency of the evidence to justify the verdict or decision, and (f) error in law.
a. Irregularity, Insufficiency of Evidence, and Error in Law
Plaintiff’s first, fifth, and sixth arguments are all substantially the same. She argues the Court erred in determining that Plaintiff’s admission that fact 20 was undisputed supported entry of judgment as a matter of law. The Court has reviewed the original moving and opposition papers concerning the summary judgment motion. Defendant, at page 9, line 24 through page 10, line 17 made a detailed argument concerning lack of causation. Nowhere in Plaintiff’s brief did Plaintiff address causation at all. Plaintiff’s brief includes discussions of the warranty of habitability, landlord maintenance obligations, the law governing the open and obvious condition doctrine, and code violations. There is no discussion of causation.
Thus, in ruling on the papers before it, the Court did not err in applying the law. The Court found Defendant met its moving burden to show Plaintiff could not establish causation, and Plaintiff failed to address the issue or raise a triable issue of material fact. The Court will not consider legal arguments made in this motion for new trial that were not made in opposition to the motion for summary judgment.
b. Accident or Surprise
Plaintiff argues she was surprised by the Court’s decision to grant the motion on causation grounds. However, “surprise” means the moving party was suddenly and unexpectedly placed in a condition resulting in detriment through no fault of his or her own. Hata v. Los Angeles County Harbor/UCLA Med. Ctr. (1995) 31 Cal.App.4th 1791, 1806. In this case, Plaintiff was “surprised” because she did not address causation in her opposition papers. This is not the type of “surprise” the law contemplates.
c. Newly Discovered Evidence
Plaintiff provides a new declaration of Avrit in an attempt to raise triable issues of material fact concerning causation. In order to support a motion on this ground, the evidence must be newly-discovered—i.e., evidence that was not known and could not reasonably have been known at the time of trial; for example, evidence that was willfully suppressed by a party and that came to light only after trial. Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161-1162. Lack of sufficient diligence is the most common reason for denying the motion. Id.
Plaintiff failed to show that the new declaration of Avrit is “newly discovered evidence” as defined by case law.
d. Excessive or Inadequate Damages
This ground does not appear to apply to this case, as no damages were awarded in connection with the ruling.
Summary judgment was entered because Defendant raised and established Plaintiff’s inability to show causation by way of her moving papers, and Plaintiff failed to address the issue or raise a triable issue of material fact in opposition to the motion. Plaintiff failed to show any ground for a new trial exists under the circumstances. The motion for a new trial is therefore denied.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at email@example.com indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.
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