This case was last updated from Los Angeles County Superior Courts on 10/26/2020 at 09:59:46 (UTC).

ERNEST THOMAS VS GREAT WESTERN PACKAGING LLC ET AL

Case Summary

On 03/21/2018 ERNEST THOMAS filed a Personal Injury - Other Personal Injury lawsuit against GREAT WESTERN PACKAGING LLC. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE, HUEY P. COTTON, SHIRLEY K. WATKINS and THERESA M. TRABER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9134

  • Filing Date:

    03/21/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

HUEY P. COTTON

SHIRLEY K. WATKINS

THERESA M. TRABER

 

Party Details

Plaintiff and Petitioner

THOMAS ERNEST

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

TRS SALLY

MICHAEL WARNER

VICTORIA KAPLAN

GREAT WESTERN PACKAGING LLC

DOES 1 TO 100

SUPERIOR AWNING INC

SUPERIOR AWNING INC. (DOE 1)

VICTORIA W. KAPLAN REVOCABLE TRUST

SUPERIOR AWINING INC

WARNER FAMILY TRUST

WARNER FAMILY TRUST AND VICTORIA W.

SUPERIOR AWNING INC. DOE 1

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

DORDICK LAW CORPORATION

Defendant, Respondent, Cross Plaintiff and Cross Defendant Attorneys

LAW OFFICES OF JOHN A. HAUSER

INAMINE BRIAN SEISHIN

 

Court Documents

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

10/5/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Opposition - OPPOSITION OPPOSITION TO AWNING MSJ- SEPARATE STATEMENT

9/15/2020: Opposition - OPPOSITION OPPOSITION TO AWNING MSJ- SEPARATE STATEMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...)

7/13/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; HEARING ON MOTION FOR...)

Exhibit List

5/27/2020: Exhibit List

Notice - NOTICE NOTICE OF THIRD CONTINUANCE

4/29/2020: Notice - NOTICE NOTICE OF THIRD CONTINUANCE

Declaration - DECLARATION OF SLB

1/8/2020: Declaration - DECLARATION OF SLB

Objection - OBJECTION TO EVIDENCE

1/8/2020: Objection - OBJECTION TO EVIDENCE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT C...) OF 01/10/2020

1/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO INDEPENDENT C...) OF 01/10/2020

Motion for Summary Judgment

11/1/2019: Motion for Summary Judgment

Notice - NOTICE APPENDIX OF EXHIBITS

11/1/2019: Notice - NOTICE APPENDIX OF EXHIBITS

Stipulation and Order - STIPULATION AND ORDER [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY (DEPARTMENT 91, 92, 93, 97)

6/12/2019: Stipulation and Order - STIPULATION AND ORDER [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES] PERSONAL INJURY COURTS ONLY (DEPARTMENT 91, 92, 93, 97)

Minute Order - Minute Order (Hearing on Motion to Compel PLAINTIFF ERNEST THOMAS TO SIGN H...)

3/5/2019: Minute Order - Minute Order (Hearing on Motion to Compel PLAINTIFF ERNEST THOMAS TO SIGN H...)

Notice of Change of Address or Other Contact Information

2/19/2019: Notice of Change of Address or Other Contact Information

Opposition - Opposition Opposition to Defendant's Motion to Compel Plaintiff to Sign Hipaa Compliant Authorizaitons

2/19/2019: Opposition - Opposition Opposition to Defendant's Motion to Compel Plaintiff to Sign Hipaa Compliant Authorizaitons

Answer

11/2/2018: Answer

SUPERIOR AWNING INC.S CROSS COMPLAINT FOR EQUITABLE INDEMNITY;AND ETC.

9/28/2018: SUPERIOR AWNING INC.S CROSS COMPLAINT FOR EQUITABLE INDEMNITY;AND ETC.

PROOF OF SERVICE SUMMONS -

6/27/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

4/10/2018: PROOF OF SERVICE SUMMONS -

100 More Documents Available

 

Docket Entries

  • 05/17/2021
  • Hearing05/17/2021 at 10:00 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Jury Trial

    Read MoreRead Less
  • 05/04/2021
  • Hearing05/04/2021 at 08:30 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Final Status Conference

    Read MoreRead Less
  • 11/17/2020
  • Hearing11/17/2020 at 13:30 PM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Informal Discovery Conference (IDC)

    Read MoreRead Less
  • 10/14/2020
  • DocketNotice of Ruling; Filed by Ernest Thomas (Plaintiff)

    Read MoreRead Less
  • 10/05/2020
  • Docketat 4:30 PM in Department U, Theresa M. Traber, Presiding; Ruling on Submitted Matter

    Read MoreRead Less
  • 10/05/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 10/05/2020); Filed by Clerk

    Read MoreRead Less
  • 10/05/2020
  • DocketOrder (Re: Superior Awning's Motion for Summary Judgment or, Alternatively, Summary Adjudication on the Issues); Filed by Clerk

    Read MoreRead Less
  • 10/05/2020
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

    Read MoreRead Less
  • 09/29/2020
  • Docketat 08:30 AM in Department U, Theresa M. Traber, Presiding; Hearing on Motion for Summary Judgment (by Superior Awning) - Held - Taken under Submission

    Read MoreRead Less
  • 09/29/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (Pam Myers #12940); Filed by Clerk

    Read MoreRead Less
137 More Docket Entries
  • 04/17/2018
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 04/17/2018
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 04/17/2018
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 04/17/2018
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 04/17/2018
  • DocketPROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 04/10/2018
  • DocketProof-Service/Summons; Filed by Ernest Thomas (Plaintiff)

    Read MoreRead Less
  • 04/10/2018
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 03/21/2018
  • DocketSUMMONS

    Read MoreRead Less
  • 03/21/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 03/21/2018
  • DocketComplaint; Filed by Ernest Thomas (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC699134    Hearing Date: September 29, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

ERNEST THOMAS,

Plaintiffs,

vs.

GREAT WESTERN PACKAGING, LLC; WARNER MICHAEL AND SALLY TRUST; KAPLAN VICTORIA; and DOES 1 – 100, inclusive,

Defendants.

AND RELATED CROSS ACTIONS.

)

)

)

)

)

)

)

)

)

)

)

)

) )

CASE NO: BC699134

[TENTATIVE] ORDER RE: SUPERIOR AWNING’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION ON THE ISSUES

Dept. U

8:30 a.m.

September 29, 2020

I. BACKGROUND

On March 21, 2018, Ernest Thomas (Plaintiff) filed a complaint against Great Western Packaging, LLC (Great Western), Warner Michael and Sally Trust (Warner), Kaplan Victoria (Kaplan) (collectively, Defendants), and Does 1 through 100, alleging: (1) premises liability and (2) general negligence. Defendants filed a cross-complaint against Superior Awning, Inc. (Superior) on May 29, 2018. Superior was substituted in as Doe Defendant 1 on August 22, 2018 and filed a cross-complaint against Defendants on September 8, 2018. Both cross-complaints allege: (1) equitable indemnity; (2) apportionment of fault; (3) contribution; and (4) declaratory relief.

Superior contracted with Great Western to install an outdoor metal awning on Great Western’s property on October 3, 1997 (the 1997 awning). (SUMF 2.) This awning remained intact on the property until April 2014 when Superior again contracted with Great Western to replace the 1997 awning with another metal awning (the awning). (SUMFS 2-4.) Great Western uses forklifts to transport pallets of boxes and product on its property. (SUMF 5.) Superior visited the property in 2014 and observed damage to the 1997 awning’s posts, I-beams, and aluminum roof panels. (SUMF 6.) Chuck Wesley (Wesley), Great Western’s former purchasing manager, informed Superior’s sales engineer, Jeffery Robert (Robert), that the forklifts were striking the 1997 awning’s posts. (SUMF 7.) Due to this concern, the parties agreed the new awning would be two feet taller than the 1997 awning to prevent the forklifts from striking its posts. (SUMF 9.) Superior did not receive any complaints about the awning from Great Western nor any maintenance requests. (SUMFS 12 & 14.) Further, Superior did not visit the property after installing the awning until 2016 after strong winds ripped the awning loose and carried it over a fence where it struck Plaintiff (the incident). (SUMF 16.)

On May 22, 2020, Superior moved for summary judgment or, alternatively, summary adjudication on the issues pursuant to Code of Civil Procedure section 473c. Superior makes this motion on the grounds that there is no triable issue of material fact that Plaintiff cannot establish the elements of negligence and premises liability against it.

II. EVIDENTARY OBJECTIONS

Defendants make 20 objections to Superior’s evidence submitted in support of this motion. The Court rules as follows on these objections:

1. OVERRULED

2. SUSTAINED

3. OVERRULED

4. OVERRULED, as to “The 2014 Awning has an increased height of two feet,” and SUSTAINED, as to the remainder.

5. SUSTAINED, because the witness’s personal knowledge is not supported by the evidence.

6. SUSTAINED, because the witness’s personal knowledge is not supported by the evidence.

7. SUSTAINED, because the witness’s personal knowledge is not supported by the evidence.

8. OVERRULED, as to damage to the posts and I-beams and SUSTAINED as to damage to the aluminum roof panels, which the testimony does not address.

9. SUSTAINED

10. OVERRULED

11. SUSTAINED

12. SUSTAINED

13. SUSTAINED

14. SUSTAINED

15. OVERRULED

16. SUSTAINED

17. SUSTAINED

18. OVERRULED

19. OVERRULED

20. OVERRULED

Plaintiff makes a single objection to paragraph 11 of Samantha Souillante’s declaration in support of Superior’s motion. This objection is SUSTAINED.

Superior makes 12 objections to Defendants’ evidence submitted in opposition to this motion. Each objection is OVERRULED. Superior also objects to much of the evidence submitted by Plaintiff in opposition to this motion. The Court rules as follows:

1. OVERRULED

2. OVERRULED

3. OVERRULED

4. SUSTAINED

5. OVERRULED

6. OVERRULED

7. OVERRULED

8. OVERRULED

9. SUSTAINED

10. SUSTAINED

11. OVERRULED

12. OVERRULED, as to “The subject structure was in an unsafe condition at the time of the incident, and SUSTAINED, as to the remainder.

13. OVERRULED

14. OVERRULED

15. OVERRULED

16. OVERRULED

17. OVERRULED

18. OVERRULED

19. SUSTAINED

20. SUSTAINED

21. SUSTAINED

22. OVERRULED

23. OVERRULED

24. OVERRULED

25. SUSTAINED

26. SUSTAINED

27. SUSTAINED

III. LEGAL STANDARD

The purpose of a motion for summary judgment “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. Atl. 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 facie 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 “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.” (Code Civ. Proc, § 437c(p)(2).) Defendant can also prove that summary judgment is proper by establishing that he or she has a complete defense to a cause of action. (Genisman v. Carley (2018) 29 Cal.App.5th 45.) “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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (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, supra, 159 Cal.App.4th at p. 467; Code Civ. Proc., § 437c(c).)

The identical standard used for summary judgment is applied when deciding discrete issues under the summary adjudication standard.

IV. DISCUSSION

A. Judicial Notice

Superior requests judicial notice be taken of Anderson v. Liberty Lobby (1986) 477 U.S. 242, 252 and Palsgraf v. Long Island Railroad Co. (1928) 248 N.Y. 339, 349. Pursuant to Evidence Code section 452(d), this Court may judicially notice the records of any court of the country. Therefore, these opinions are judicially noticed.

B. First Cause of Action – Negligence

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

To meet it initial burden on negligence, Superior must show there is no triable issue of material fact that Plaintiff cannot prove at least one of the elements required for negligence. Here, Superior argues Plaintiff has not produced any evidence establishing any of the elements necessary to plead negligence. Firstly, Superior contends it does not owe a duty to Plaintiff to act or refrain from acting. Prior to the incident, Superior states it never met nor even had knowledge of Plaintiff. There did not exist a contractual or special relationship between Superior and Plaintiff. Superior relies on Demmer v. City of Eureka, (1947) 78 Cal.App.2d 708, 712 for the proposition that “one who enters the premises of another as a trespasser or mere licensee does so at his own risk, and the owner owes him no duty to keep the premises in a safe condition. His only duty is to abstain from wanton or willful injury.” Superior argues Plaintiff was a trespasser on property owned by the California Department of Transportation (Caltrans) of whose presence Superior was unaware. Therefore, Superior reasons there is no relationship between itself and Plaintiff which could impose any duty.

Second, Superior argues that, even if it owed a duty to Plaintiff, the wind dislocating the awning and Plaintiff trespassing on Caltrans’ property were unforeseeable events. In addition to the passage of two years, Superior claims it never received any complaints from Great Western that the awning was unsafe nor did it receive a maintenance request. Superior asserts the awning was installed in compliance with both the California Building Code (CBC) and International Building Code (IBC) applicable in 2014. At the time, the wind-loading requirements on the property were 110 miles per hour, 3-second gusts for a risk category II structure. Therefore, Superior argues it would require 150 miles per hour wind to lift the awning from an undamaged anchorage capacity of the column-to-concrete pier connections.

Next, Superior contends it is absolved from any potential liability via the 2014 installation contract it entered with Great Western. The 2014 contract required Great Western to agree that “Superior is not liable for injuries or damages to persons or property, including property purchased under this contract, caused by misuse, fire, wind, hail, explosion, vandalism, blunt force, sustained pressure, inordinate weight, vehicles, earthquake, war, or similar perils including Acts of God or Nature.” (SUMF # 36.) Under the contract, Great Western was responsible for obtaining installation permits. Superior was unaware that Great Western never obtained these required permits until after it was pled into this action. (SUMFS 34-35 & 39-40.) Superior argues once it finished installing the awning in 2014, it relinquished complete control of it to Great Western. Thereby, Superior asserts only Great Western owed a duty to Plaintiff because it had control over the awning at the time of the incident and Great Western contractually agreed to relieve Superior of any potential liability.

Superior reasons it could not have breached any duty to Plaintiff without owing Plaintiff a duty. Even assuming Superior owed Plaintiff a duty to use reasonable care, Plaintiff was trespassing on Caltrans’ property adjacent to Great Western’s property when he was struck by the awning. (SUMFS 18-19.) Superior argues it had no advanced knowledge of this trespass.

Plaintiff claims the wind was blowing in the form of a twister on June 20, 2016 when it lifted the awning’s roof and caused it to be folded over the eight-foot fence Great Western has separating its property from Caltrans’ land. (SUMFS 22-23.) Superior has been installing metal awnings for 32 years and never before has one of its comparable, metal awnings been lifted by wind. (SUMF 43.) The awning was installed in compliance with the CBC and IBC applicable in 2014. (SUMF 45.) Thus, Superior argues it cannot be held liable because it was not foreseeable that Plaintiff would be trespassing on adjacent property and that wind would rip the awning free.

If Plaintiff were able to prove the first two elements, Superior argues Plaintiff was the proximate cause of his own injuries because he was trespassing on the adjacent property. Finally, Superior reasons that its installation of the awning was more than two years prior to the incident, thus, its involvement with the awning was too far removed in time and nature to hold it liable for any injuries caused by the awning. Superior asserts the actions of Great Western are the “but for” cause of the awning coming loose.

Superior has met its initial burden on negligence. Factors considered in determining whether a duty of care is owed include: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) the moral blame attached to the defendant's conduct; and (6) the policy of preventing future harm. (Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)

Here, there is no evidence Superior’s installation of the 2014 awning for Great Western was intended to affect Plaintiff at all. Rather, Superior installed this awning at Great Western’s request as a replacement for the 1997 awning. The awning was intended to be and was used by Great Western in its shipping and packing business.

Second, the harm suffered by Plaintiff was not a foreseeable consequence of Superior installing the awning on Great Western’s property. Superior neither knew of Plaintiff’s presence on the adjacent property nor had knowledge of any of its other awnings being ripped loose under similar wind conditions in the past 32 years. Lastly, the lapse of two years between Superior installing the awning and the winding lifting it up causing it to strike Plaintiff attenuates any causal connection. Superior had no control over the awning for two years prior to the incident. The awning was under the exclusive control of Great Western during this time.

Therefore, in support of its initial burden, Superior has shown, based on undisputed evidence, that that it owed no duty to Plaintiff because it had no way of knowing Plaintiff was trespassing on the adjacent property nor was it reasonable to anticipate that wind would dislocate and toss the awning over Great Western’s fence. As no duty of care is present, discussion of the remainder of the elements is unnecessary.

The burden shifts to Defendants to demonstrate a triable issue of material fact as to whether Superior’s negligence contributed to Plaintiff’s injuries. Here, Defendants argue Superior owed them, their patrons, and bystanders, including Plaintiff, the duty to design, assemble, construct, and install the awning in a reasonably safe manner.

Defendants rely on Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 378, for the position that an independent contractor owes a duty to use reasonable care in preventing damage to persons reasonably expected to be affected by his or her work, and that an independent contractors’ liability does not dissolve upon the completion of a project. (Id. at 384.) Defendants argue that Superior was in the position to inform them of any potential hazards posed by the planning, configuration, and construction of the awning, and that no such warnings were forthcoming. Moreover, the awning did not exhibit any conspicuous elements that put Defendants on notice of any potential hazards. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210.)

Defendants submit the testimony of three Superior employees who worked on the awning installation. Michael Luna (Luna) testified that no one at Great Western told him how to complete the installation nor did he express concern to Great Western about the manner of the installation. Luna stated he would have expressed such concern if he had any, but ultimately, the awning installation proceeded without incident. (Luna deposition, at pp. 18 & 29.) Julio Nunez (Nunez) stated that if a customer wanted a particular outdoor structure that would not withstand strong winds, he would notify them of the potential danger. Nunez testified he never informed Great Western that the awning posed a dangerous condition. (Nunez deposition, pp. 19-20 & 60.) Robert, whose job it was to advise clients on projects, testified he did not advise Great Western that incorporating the existing pilasters into the awning was a dangerous idea. (Robert deposition, at pp. 18, 25, 32, & 37.)

Moreover, Defendants contend they regularly inspected the awning and did not discover any obvious defects in its construction or performance and that any incidents would have been reported per company policy.

Defendants assert that it was Superior’s responsibility to secure any required permits for the awning’s installation or, at least, to ensure that Defendants had secured the permits prior to proceeding with the installation. (ACCO Engineered Systems, Inc. v. Contractors’ State License Bd (2018) 30 Cal.App.5th 80, 88.) Defendants reason that Superior cannot absolve itself from liability merely by claiming that Defendants were responsible for obtaining the permits when it proceeded with the installation without them.

Defendant’s retained expert, Seb Ficcadente (Ficcadente), is a structural engineer who disputes Superior’s claim that the awning, as installed, could resist wind loads of up to 150 miles per hour. (Ficcante declaration, ¶¶ 12 -13.) Rather, Ficcadente opined that, by anchoring the support posts to the tops of existing concrete piers, Superior reduced the awning’s wind load capacity by approximately 50 percent from the 110 miles per hour building code requirement. Thus, Ficcamente states the awning’s wind load capacity was much less than it was required to be by law. (Ibid.)

Ficcadente also disputes that past damage to the concrete piers/pilaster caused or contributed to the incident. Ficcadente identified two concrete piers/pilasters involved in the awning’s failure on the date of the incident and neither of them had any significant damage from forklifts. Damage to the remaining posts is immaterial because the awning’s failure was not initiated at those locations. (Id., ¶¶ 14-16.)

Therefore, with Ficcadente’s testimony, Defendants have met their burden in showing a triable issue of material fact whether Superior’s negligence contributed to Plaintiff’s injuries.

Plaintiff also submitted an opposition to Superior’s motion. Plaintiff argues Superior breached its duty to install a reasonably safe awning by proceeding with the installation without a permit and modifying the installation from the awning kit supplied by the manufacturer such that the awning could not withstand 150 miles per hour winds.

Plaintiff submits the declaration of Brad Avrit (Avrit), a civil engineer retained as an expert by Plaintiff. Avrit states that Superior’s installation of the awning without Defendants’ securing a permit removed a level of safety and created an inherent risk of danger to the public. (Avrit declaration, ¶ 11.) Moreover, Avrit states Superior’s failure to install the awning in compliance with the manufacturer’s instruction contributed to the awning’s reduced safety. (Id., ¶ 13.)

The Court finds, on this record, that there are triable issues of material fact on duty, breach and causation that preclude summary judgment on the negligence claim.

C. Second Cause of Action – Premises Liability

Premises liability is a form of negligence requiring: (1) defendant be an owner, occupant or lessor of the premises; (2) defendant was negligent in the use, maintenance, or management of the premises; and (3) negligence was a cause of injury, damage, loss, or harm to plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

To meet its initial burden on premises liability, Superior must show there is no triable issue of material fact with respect to any of the elements required for premises liability. Here, Superior argues that Plaintiff has not and cannot demonstrate that Superior owned, possessed, or controlled the property where Plaintiff claims he was injured. Great Western is located at 8230 Haskell Avenue, Van Nuys, California, 91406 on property owned by Defendants the Victoria Kaplan Trust and the Warner Family Trust. Superior is located at 14555 Titus Street, Van Nuys, California, 91402. As it does not own the property where Great Western is located nor where Plaintiff was injured and did not have control of the awning, Superior argues it cannot be liable to Plaintiff under a premises liability theory.

Superior has met its initial burden on premises liability. Superior has shown, based on undisputed evidence, that it does not own nor have control over the property where Great Western and the awning are located. Additionally, the property where Plaintiff was injured is owned by Caltrans, not Superior. Without owning or possessing control over the property, Superior cannot be found liable for premises liability.

Consequently, the burden shifts to Plaintiff to demonstrate a triable issue of material fact whether Superior did own or control the property where Great Western and the awning were located or the adjacent property.

Plaintiff has not submitted any evidence creating a triable issue of material fact on this claim.

D. CONCLUSION

For the foregoing reasons, Superior’s motion for summary judgment is DENIED. Summary adjudication is GRANTED in Superior’s favor with respect to Plaintiff’s premises liability claim.

Plaintiff is ordered to give notice of the Court’s ruling.

DATED: September 29, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

Case Number: BC699134    Hearing Date: July 13, 2020    Dept: U

Tentative ruling on the Motion for Summary Judgment or in the alternative for Summary Adjudication brought by Defendant Superior Awning, Inc.

The Court has reviewed the papers filed in connection with the Motion for Summary Judgment or in the alternative for Summary Adjudication (MSJ) brought by Defendant Superior Awning, Inc. (“Superior”) and rules as follows.

Superior first attempted to file its MSJ on May 22, 2020, but its moving papers were rejected.  Superior filed a revised version of the MSJ on May 27, 2020 and represented on May 29, 2020 that its counsel would provide conformed copies of the filed version of the motion to all counsel by email.  (Superior’s Notice of Errata, etc., filed on May 29, 2020, p. 2.)  There appears to be no proof of service on file reflecting the service of Superior’s corrected MSJ.   Since the errata was signed, filed and served on May 29, 2020, the Court concludes that the corrected MSJ was not served until May 29, 2020 at the earliest.  Plaintiff’s counsel indicates that he did not receive the corrected MSJ until June 8, 2020.  (Declaration of John M. Upton, ¶5.)  The notice indicates that the hearing on the MSJ was set for July 13, 2019 (sic), but projects that the hearing would be rescheduled to August 6, 2020.  (Moving papers, filed May 27, 2020.)  Despite that indication, the MSJ remains set for hearing on July 13, 2020.

Code of Civil Procedure section 437c(a)(2) governing motions for summary judgment or summary adjudication provides that “[n]otice 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.  If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days . . . .” (Ibid.)  “The 75-day notice requirement for a summary judgment motion is measured from the date notice is served to the date of the actual hearing, including a continued hearing, and not the originally scheduled hearing.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1209.)  In light of the express, mandatory statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings. (Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 842-843.)

Here, Superior filed its MSJ on May 27, 2020. The accompanying proof of service indicates this motion was served electronically and personally on all parties, including Plaintiff’s attorney, on May 22, 2020, but the motion served on that day was the original motion not the corrected MSJ that was actually filed with the Court.  Assuming the corrected MSJ was served on May 29, 2020 (despite the absence of any filed proof of service), any hearing on Superior’s MSJ would have to be heard at least 75 days later or on August 12, 2020 at the earliest. 

It is anticipated that Superior will argue that its mail service of the original version of its motion on May 22, 2020 provided adequate notice that the motion would be heard 75 days later on August 5, 2020.  Even if that were so, the MSJ has never been scheduled for hearing on that date, and Superior’s corrected MSJ notified Plaintiff that the actual hearing date was July 13, 2020.  The fact that Superior also indicated its interest in resetting the hearing date does not vitiate the fact that Superior gave notice on or about May 29, 2020 that the hearing date was July 13, 2020.  It is still scheduled for that date.    

Accordingly, the Court finds that, in light of Plaintiff’s objection to the shortened notice time, Superior’s MSJ cannot be considered because of a lack of adequate notice required under Code of Civil Procedure section 437c(a)(2).  The Court continues the hearing on the MSJ to September 29, 2020 at 8:30 a.m. to give Plaintiff the 75-day notice period to which he is entitled under the statute. 

Because of ongoing delays in the Court’s ability to conduct civil jury trials because of the COVID-19 pandemic, the Court advances and vacates the trial and final status dates in this case and will conduct a trial setting conference during the hearing on July 13, 2020.

Plaintiff is to give notice of the Court’s ruling.