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This case was last updated from Los Angeles County Superior Courts on 06/12/2019 at 21:46:40 (UTC).

FRANCISCO DONIS VS STATE OF CALIFORNIA ET AL

Case Summary

On 05/08/2017 FRANCISCO DONIS filed a Personal Injury - Motor Vehicle lawsuit against STATE OF CALIFORNIA. 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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0427

  • Filing Date:

    05/08/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

DONIS FRANCISCO

Defendants and Respondents

DEPARTMENT OF TRANSPORTATION

PRO GENERAL INSURANCE SOLUTIONS INC

STATE OF CALIFORNIA

DOES 1 TO 50

CITY OF SOUTH GATE

GOVERNMENT CLAIMS PROGRAM

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

KARIMAN SHAHIN SHWAWN

KARIMIAN SHAHIN SHAWN ESQ.

Defendant Attorney

SHAW JOHN W.

 

Court Documents

Declaration

12/6/2018: Declaration

Declaration re: Due Diligence

12/17/2018: Declaration re: Due Diligence

Proof of Personal Service

12/17/2018: Proof of Personal Service

Answer

5/21/2019: Answer

Stipulation and Order

5/23/2019: Stipulation and Order

Minute Order

10/22/2018: Minute Order

Proof of Personal Service

11/30/2018: Proof of Personal Service

Proof of Personal Service

12/4/2018: Proof of Personal Service

Proof of Personal Service

12/4/2018: Proof of Personal Service

Proof of Personal Service

12/4/2018: Proof of Personal Service

Minute Order

1/11/2019: Minute Order

Request for Dismissal

2/8/2019: Request for Dismissal

SUMMONS

5/8/2017: SUMMONS

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

5/8/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

2 More Documents Available

 

Docket Entries

  • 05/23/2019
  • Stipulation and Order (to Continue FSC, Trial and Trial Related Dates); Filed by State of California (Defendant)

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  • 05/21/2019
  • Answer; Filed by State of California (Defendant)

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  • 02/08/2019
  • Request for Dismissal; Filed by Francisco Donis (Plaintiff)

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  • 01/11/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Trial Setting Conference - Held

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  • 01/11/2019
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: (Dismissal for Failure of Plaintiff to Serve/Prosecute) - Not Held - Vacated by Court

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  • 01/11/2019
  • Minute Order ((Order to Show Cause Re: Dismissal for Failure of Plaintiff to...)); Filed by Clerk

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  • 12/17/2018
  • Declaration re: Due Diligence; Filed by Francisco Donis (Plaintiff)

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  • 12/17/2018
  • Proof of Personal Service; Filed by Francisco Donis (Plaintiff)

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  • 12/06/2018
  • Declaration Of Reasonable Diligence; Filed by Francisco Donis (Plaintiff)

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  • 12/04/2018
  • Proof of Personal Service; Filed by Francisco Donis (Plaintiff)

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  • 12/04/2018
  • Proof of Personal Service; Filed by Francisco Donis (Plaintiff)

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  • 12/04/2018
  • Proof of Personal Service; Filed by Francisco Donis (Plaintiff)

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  • 11/30/2018
  • Proof of Personal Service; Filed by Francisco Donis (Plaintiff)

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  • 11/08/2018
  • at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated

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  • 10/22/2018
  • at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court

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  • 10/22/2018
  • Minute Order ((Final Status Conference)); Filed by Clerk

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  • 10/22/2018
  • Minute order entered: 2018-10-22 00:00:00; Filed by Clerk

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  • 05/08/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 05/08/2017
  • SUMMONS

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  • 05/08/2017
  • Complaint; Filed by Francisco Donis (Plaintiff)

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Tentative Rulings

Case Number: BC660427    Hearing Date: November 05, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANCISCO DONIS,

Plaintiff(s),

vs.

STATE OF CALIFORNIA, ET AL.,

Defendant(s).

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CASE NO: BC660427

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

November 5, 2019

1. Background Facts

Plaintiff, Francisco Donis filed this action against Defendants, State of California, acting by and through the Department of Transportation, et al. for damages arising out of a collision between Plaintiff’s automobile and an arrow-board traffic control device, which had apparently become loose from a nearby construction project and was in the middle of the highway.

2. Motion for Summary Judgment

a. Parties’ Positions

Defendant moves for summary judgment on the complaint, contending it is entitled to judgment as a matter of law because (a) Gov Code §815 (mis-cited as Civil Code §815 throughout the moving papers) bars the complaint, and (b) Plaintiff cannot show breach of any duty owed to him.

Plaintiff opposes the motion, arguing (a) the parties are involved in ongoing settlement negotiations, and (b) discovery remains ongoing between the parties, such that a continuance of the hearing on this motion is necessary.

Defendant, in reply, argues Plaintiff failed to materially oppose the motion and it should be granted. Defendant argues the request for a continuance should be denied because (a) Plaintiff’s attorney’s declaration does not meet the standard set forth in CCP §437c(h), and (b) Plaintiff has not been diligent in pursuing discovery in this action.

b. 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.)

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.)

 

c. Moving Burden

Defendant met its moving burden to show it is entitled to judgment as a matter of law per Gov Code §815. Gov Code §815 makes clear that all liability against a governmental entity must be grounded in statute. Plaintiff’s complaint, however, includes causes of action for motor vehicle negligence and general negligence only. Neither cause of action is grounded in statute. Defendant therefore met its initial burden to show it is entitled to judgment as a matter of law on the complaint.

d. Opposing Burden

Plaintiff’s only substantive argument in support of his opposition is that the parties are involved in ongoing settlement negotiations. Plaintiff cites no authority for the novel position that ongoing settlement negotiations negate a motion for summary judgment. Defendants often pursue settlement and defense of an action at the same time. Plaintiff failed to raise a triable issue of material fact showing the motion for summary judgment should be denied.

e. Continuance

Plaintiff’s main argument is that the motion for summary judgment should be continued to permit Plaintiff to conduct additional discovery. CCP §437c(h) governs requests for continuance of hearings on motions for summary judgment. It 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.”

The opposing party's declaration in support of a motion to continue the hearing should show the following:

• Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion;

• The specific reasons why such evidence cannot be presented at the present time;

• An estimate of the time necessary to obtain such evidence; and

• The specific steps or procedures the opposing party intends to utilize to obtain such evidence.

Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420.

Plaintiff’s attorney’s declaration in support of the request for a continuance falls grossly short of this standard. Counsel merely declares, “Further, Plaintiff has propounded discovery to Defendant, which has not yet been answered. Plaintiff believes in good faith that there is information and documentation existing, but currently unknown to the Plaintiff, that is required to draft a complete opposition to Defendant's Motion for Summary Judgement. This information and documentation is not available from any source other than the Defendant.”

Notably, it is not clear how any amount of discovery could cure the defect established in the motion for summary judgment. The defect at issue is the insufficient pleading of the complaint itself. The request for a continuance is denied.

f. Conclusion

Defendant met its moving burden to show it is entitled to judgment as a matter of law on the complaint. Plaintiff failed to negate the moving burden, raise a triable issue of material fact, or show grounds for a continuance. The motion for summary judgment is therefore granted.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org 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.