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This case was last updated from Los Angeles County Superior Courts on 02/18/2020 at 20:01:04 (UTC).

STEPHEN EIGES VS ALL AMERICAN ASPHALT

Case Summary

On 02/01/2017 STEPHEN EIGES filed a Personal Injury - Other Personal Injury lawsuit against ALL AMERICAN ASPHALT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS and DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8577

  • Filing Date:

    02/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC D. GROSS

DEIRDRE HILL

 

Party Details

Plaintiff and Petitioner

EIGES STEPHEN

Defendants and Respondents

WESTWAY AUTO DISMANTLERS INC

THE ALBERT GROSS LIMITED PARTNERHIP

ALL AMERICAN ASPHALT

DOES 1-50

WESTWAY AUTO DISMANTLERS INC.

THE ALBERT GROSS LIMITED PARTNERSHIP

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HOFFMAN STEVE A. ESQ.

DOWNER STEVEN D.

HOFFMAN STEVE ANTHONY ESQ.

Defendant and Respondent Attorneys

NEAL F. MORRW III

MORROW NEAL F.

EILER JAMES O. ESQ.

III NEAL F. MORRW

VOSS MATTHEW ERIC

HUEZO CELIM EDUARDO

 

Court Documents

Minute Order - MINUTE ORDER (STATUS CONFERENCE MEDIATION)

1/6/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE MEDIATION)

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL

1/22/2020: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL

Notice of Ruling

1/30/2020: Notice of Ruling

Minute Order - MINUTE ORDER (STATUS CONFERENCE SETTLEMENT, AND STATUS RE: CLOSURE OF THE P...)

11/19/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE SETTLEMENT, AND STATUS RE: CLOSURE OF THE P...)

Declaration - DELCARATION OF NEAL MORROW IN RESPONSE TO ORDER TO SHOW CAUSE

8/9/2019: Declaration - DELCARATION OF NEAL MORROW IN RESPONSE TO ORDER TO SHOW CAUSE

Case Management Statement

9/16/2019: Case Management Statement

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SANCTIONS AGAINST DEFENDANT ALBERT GR...)

9/19/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: SANCTIONS AGAINST DEFENDANT ALBERT GR...)

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

9/24/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

DEFENDANT ALL AMERICAN ASPHALT'S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEVEN D. DOWNER, ESQ.

5/11/2018: DEFENDANT ALL AMERICAN ASPHALT'S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEVEN D. DOWNER, ESQ.

DEFENDANT ALL AMERICAN ASPHALT'S NOTICE OF MOTION AND MOTION TO STRIKE PERTINENT PORTIONS OF COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEVEN D. DOWNER, ESQ.

5/11/2018: DEFENDANT ALL AMERICAN ASPHALT'S NOTICE OF MOTION AND MOTION TO STRIKE PERTINENT PORTIONS OF COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEVEN D. DOWNER, ESQ.

Case Management Statement

1/29/2019: Case Management Statement

Reply - Reply Reply of Defendant All American Asphalt to Plaintiff's Opposition to Motion to Strike Portions of First Amended Complaint

2/5/2019: Reply - Reply Reply of Defendant All American Asphalt to Plaintiff's Opposition to Motion to Strike Portions of First Amended Complaint

Minute Order - Minute Order (Motion of defendant, All American Asphalt, to Strike Portions...)

2/13/2019: Minute Order - Minute Order (Motion of defendant, All American Asphalt, to Strike Portions...)

Answer

2/21/2019: Answer

CoverSheet -

2/1/2017: CoverSheet -

Proof of Service of Summons and Complaint - Demand for Jury Trial

7/11/2017: Proof of Service of Summons and Complaint - Demand for Jury Trial

Other - - AMENDED PROOF OF SERVICE OF SUMMONS AND DUE DILIGENCE

7/12/2017: Other - - AMENDED PROOF OF SERVICE OF SUMMONS AND DUE DILIGENCE

THE ALBERT GROSS LIMITED PARTNERSHIP'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT

8/11/2017: THE ALBERT GROSS LIMITED PARTNERSHIP'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT

35 More Documents Available

 

Docket Entries

  • 07/14/2020
  • Hearing07/14/2020 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 07/07/2020
  • Hearing07/07/2020 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 04/30/2020
  • Hearing04/30/2020 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Status Conference

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  • 02/06/2020
  • Docketat 08:30 AM in Department B; Status Conference (Mediation) - Not Held - Advanced and Continued - by Court

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  • 01/30/2020
  • DocketNotice of Ruling; Filed by ALL AMERICAN ASPHALT (Defendant)

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  • 01/23/2020
  • Docketat 08:30 AM in Department B; Hearing on Ex Parte Application ( for an Order to Continue Trial) - Held - Motion Granted

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  • 01/23/2020
  • DocketMinute Order ( (Hearing on Ex Parte Application for an Order to Continue Trial)); Filed by Clerk

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  • 01/22/2020
  • DocketEx Parte Application ( for an Order to Continue Trial); Filed by ALL AMERICAN ASPHALT (Defendant)

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  • 01/06/2020
  • Docketat 08:30 AM in Department B; Status Conference (Mediation) - Not Held - Continued - Court's Motion

    Read MoreRead Less
  • 01/06/2020
  • DocketNotice of Ruling; Filed by ALL AMERICAN ASPHALT (Defendant)

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102 More Docket Entries
  • 07/11/2017
  • DocketProof-Service/Summons; Filed by STEPHEN EIGES (Plaintiff)

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  • 07/11/2017
  • DocketProof of Service of Summons and Complaint

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  • 07/11/2017
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 02/01/2017
  • DocketComplaint

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  • 02/01/2017
  • DocketSummons; Filed by null

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  • 02/01/2017
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 02/01/2017
  • DocketSummons; Filed by Plaintiff/Petitioner

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  • 02/01/2017
  • DocketComplaint; Filed by STEPHEN EIGES (Plaintiff)

    Read MoreRead Less
  • 02/01/2017
  • DocketSummons Filed; Filed by Attorney for Plaintiff/Petitioner

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  • 02/01/2017
  • DocketComplaint

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Tentative Rulings

Case Number: BC648577    Hearing Date: November 17, 2020    Dept: M

***Updated 11/17/20 8:17amSuperior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

STEVEN EIGES,

Plaintiff,

Case No.:

BC648577

vs.

[Tentative] RULING

ALL AMERICAN ASPHALT, et al.,

Defendants.

Hearing Date: November 17, 2020 (continued from October 2, 2020)

Moving Parties: Plaintiff Stephen Eiges

Responding Party: Defendant The Albert Gross Limited Partnership

(1) Motion to Compel Responses to Form Interrogatories, Set One

(2) Motion to Compel Responses to Special Interrogatories, Set One

(3) Motion to Compel Responses and Production in Response to Request for Production of Documents, Set One

(4) Motion to Compel to Deem Request for Admissions, Set One, Admitted

The court considered the moving, response, and reply papers, argument at hearing, and status update declaration. The hearing was continued to allow plaintiff’s counsel to provide courtesy copies of the discovery requests by email to defense counsel and for defendant to serve responses.

RULING

The motions are GRANTED. Defendant is ordered to serve on plaintiff verified responses without objections to plaintiff’s Form Interrogatories, Set One and Special Interrogatories, Set One, within 15 days.

Defendant is ordered (1) to serve on plaintiff a verified response without objections to plaintiff’s Request for Production of Things, Set One, and (2) to produce all documents and things in defendant’s possession, custody, or control, which are responsive to plaintiff’s demand, within 15 days.

Defendant is ordered to further respond to plaintiff’s Request for Admissions, Set One, Nos. Nos. 5-9, 13, 14, and 24-26, without objection within 15 days.

Defendant and defense counsel Neal F. Morrow III, Esq. and The Law Offices of Neal Morrow are ordered to pay sanctions to plaintiff in the amount of $2,700 in total for all four motions within 30 days.

BACKGROUND

On February 1, 2017, plaintiff Stephen Eiges filed a complaint against defendants All American Asphalt, The Albert Gross Limited Partnership, dba Westway Auto Dismantlers, Inc. for (1) negligence, (2) premises liability, (3) negligent infliction of emotional distress, and (4) intentional tort.

On October 17, 2018, the court sustained with leave to amend defendant All American Asphalt’s demurrer to the 4th cause of action for intentional tort, finding that the allegations were insufficient to establish a cause of action for ultrahazardous activity.

On November 8, 2018, plaintiff Stephen Eiges filed a First Amended Complaint against defendants for (1) negligence, (2) premises liability, (3) trespass, and (4) nuisance.

On February 13, 2019, the court granted defendant’s motion to strike plaintiff’s claim for punitive damages.

LEGAL AUTHORITY

Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §2030.290(b). The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.

Request for Production of Documents

Where there has been no timely response to a CCP §2031.010 demand, the demanding party must seek an order compelling a response. CCP §2031.300. Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of “good cause” is required. Weil & Brown, Civil Procedure Before Trial, 8:1487.

Request for Admissions

Pursuant to CCP § 2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under § 2023.010 et seq.” Weil & Brown, Civ. Proc. Before Trial, ¶ 8:1370, citing CCP § 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP § 2033.280(c).

DISCUSSION

Plaintiff requests that the court compel defendant The Albert Gross Limited Partnership, dba Westway Auto Dismantlers, Inc. to serve responses to plaintiff’s initial form interrogatories, special interrogatories, and request for production of documents, and to deem admitted the truth of the matters in the request for admissions, served on January 17, 2020 by personal service by a registered process server, at defense counsel’s office. Responses were due by February 18, 2020.

On July 9, 2020, plaintiff’s counsel sent an email to defense counsel stating, “Although no meet & confer is required, we are giving your client an opportunity to avoid Motions to Compel and Mandatory Monetary Sanctions. On January 17, 2020, six months ago, we personally served your office via a registered process server” with discovery requests. Plaintiff’s counsel requested the responses by July 16, 2020. That same day, defense counsel responded, stating, “I am unaware of demand for discovery and would have hoped you would have brought up a lack of responses in February. I do not have copies of discovery or notices of deposition. Please forward by email so we may review them.” On July 10, plaintiff’s counsel responded by email, stating that in response to defense counsel’s email request to scan and forward the discovery requests previously served, he attached a copy of the received signature of the discovery served. He asked, “Will this suffice or do you still need scans?” As of the filing date of the motions on September 8, 2020, plaintiff’s counsel had not received responses.

In defendant’s response, defense counsel states in his declaration that he is a sole practitioner and his office has a general reception for multiple offices and general mail delivery which sorts mail. When he received the email from plaintiff’s counsel on July 9, 2020, he checked with the mail reception and they were not able to find the documents that were sent to the general mailing office. Counsel replied back to plaintiff’s counsel that he never received nor was he aware of the discovery requests. “I advised counsel to provide me with copies of the discovery and that I would respond to the discovery.” He contends that he never received a reply nor was he provided copies and that counsel has been unresponsive to defense counsel’s request to provide copies.

In reply, plaintiff reasserts that defense counsel had received the requests in January 2020 and that counsel sent proof of receipt.

At the hearing on October 2, 2020, the court found that it appeared that the discovery requests were properly served but that defense counsel was not aware of them and had requested copies. The court continued the hearing to allow plaintiff’s counsel to send courtesy copies to defense counsel and for defendant to serve responses. The court also ordered that given that all objections had been waived and based upon plaintiff’s counsel’s representations that defendant had provided belated responses to the RFAs but that as to ten of them, defendant responded with “This admission is unintelligible as phrased. On that basis, deny,” counsel were to meet and confer about the RFA responses.

In a status update declaration, plaintiff’s counsel states that despite the court’s order on October 2, 2010 and his efforts to meet and confer post-October 2, he has not received any discovery responses or any production in response to the Form Interrogatories, Special Interrogatories, and Request for Production of Documents, or additional responses to Request for Admissions, Set One Nos. 5-9, 13, 14, and 24-26. Plaintiff’s counsel sent correspondence to defense counsel and attempted to meet and confer with respect to the Request for Admissions. Plaintiff argues that it should be awarded monetary sanctions.

The court finds that the discovery requests were properly served and that courtesy copies were provided to defense counsel. It does not appear that defendant has served responses or produced responsive documents despite given additional time to do so. Further, defendant’s responses to the Request for Admissions, Set One are deficient and the objections were waived. Counsel were given additional time to meet and confer as to defendant’s purported objection that some of the RFAs were unintelligible. Through plaintiff’s counsel’s attempts to meet and confer, the correspondence provides ample guidance and clarification as to any requests that are purportedly unintelligible or vague.

The motions are thus GRANTED.

Plaintiff initially requested $2,051, or $512 per motion against defendant and defense counsel, but raised it to $2,976 or $744 per motion in light of the continued hearing and supplemental response. The court finds that $2,700 ($300/hr. x 9 hrs.) is a reasonable amount to be awarded against defendant and defense counsel in total for all four motions.

Plaintiff is ordered to give notice of the ruling.

Case Number: BC648577    Hearing Date: October 02, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

STEVEN EIGES,

Plaintiff,

Case No.:

BC648577

vs.

[Tentative] RULING

ALL AMERICAN ASPHALT, et al.,

Defendants.

Hearing Date: October 2, 2020

Moving Parties: Plaintiff Stephen Eiges

Responding Party: Defendant The Albert Gross Limited Partnership

(1) Motion to Compel Responses to Form Interrogatories, Set One

(2) Motion to Compel Responses to Special Interrogatories, Set One

(3) Motion to Compel Responses and Production in Response to Request for Production of Documents, Set One

(4) Motion to Compel to Deem Request for Admissions, Set One, Admitted

The court considered the moving, response, and reply papers.

RULING

The motions are CONTINUED to November 17, 2020, at 8:30 a.m. Plaintiff’s counsel is to provide courtesy copies of the discovery requests by email to defense counsel no later than 5:00 p.m. on October 5, 2020.

BACKGROUND

On February 1, 2017, plaintiff Stephen Eiges filed a complaint against defendants All American Asphalt, The Albert Gross Limited Partnership, dba Westway Auto Dismantlers, Inc. for (1) negligence, (2) premises liability, (3) negligent infliction of emotional distress, and (4) intentional tort.

On October 17, 2018, the court sustained with leave to amend defendant All American Asphalt’s demurrer to the 4th cause of action for intentional tort, finding that the allegations were insufficient to establish a cause of action for ultrahazardous activity.

On November 8, 2018, plaintiff Stephen Eiges filed a First Amended Complaint against defendants for (1) negligence, (2) premises liability, (3) trespass, and (4) nuisance.

On February 13, 2019, the court granted defendant’s motion to strike plaintiff’s claim for punitive damages.

LEGAL AUTHORITY

Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §2030.290(b). The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.

Request for Production of Documents

Where there has been no timely response to a CCP §2031.010 demand, the demanding party must seek an order compelling a response. CCP §2031.300. Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of “good cause” is required. Weil & Brown, Civil Procedure Before Trial, 8:1487.

Request for Admissions

Pursuant to CCP § 2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under § 2023.010 et seq.” Weil & Brown, Civ. Proc. Before Trial, ¶ 8:1370, citing CCP § 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP § 2033.280(c).

DISCUSSION

Plaintiff requests that the court compel defendant The Albert Gross Limited Partnership, dba Westway Auto Dismantlers, Inc. to serve responses to plaintiff’s initial form interrogatories, special interrogatories, and request for production of documents, and to deem admitted the truth of the matters in the request for admissions, served on January 17, 2020 by personal service by a registered process server, at defense counsel’s office. Responses were due by February 18, 2020.

On July 9, 2020, plaintiff’s counsel sent an email to defense counsel stating, “Although no meet & confer is required, we are giving your client an opportunity to avoid Motions to Compel and Mandatory Monetary Sanctions. On January 17, 2020, six months ago, we personally served your office via a registered process server” with discovery requests. Plaintiff’s counsel requested the responses by July 16, 2020. That same day, defense counsel responded, stating, “I am unaware of demand for discovery and would have hoped you would have brought up a lack of responses in February. I do not have copies of discovery or notices of deposition. Please forward by email so we may review them.” On July 10, plaintiff’s counsel responded by email, stating that in response to defense counsel’s email request to scan and forward the discovery requests previously served, he attached a copy of the received signature of the discovery served. He asked, “Will this suffice or do you still need scans?” As of the filing date of the motions on September 8, 2020, plaintiff’s counsel had not received responses.

In defendant’s response, defense counsel states in his declaration that he is a sole practitioner and his office has a general reception for multiple offices and general mail delivery which sorts mail. When he received the email from plaintiff’s counsel on July 9, 2020, he checked with the mail reception and they were not able to find the documents that were sent to the general mailing office. Counsel replied back to plaintiff’s counsel that he never received nor was he aware of the discovery requests. “I advised counsel to provide me with copies of the discovery and that I would respond to the discovery.” He contends that he never received a reply nor was he provided copies and that counsel has been unresponsive to defense counsel’s request to provide copies.

In reply, plaintiff reasserts that defense counsel had received the requests in January 2020 and that counsel sent proof of receipt.

It appears that the discovery requests were properly served. Defense counsel, however, indicates in his declaration that he was not aware of them and had requested copies. Rather than emailing copies of the discovery requests to defense counsel, plaintiff’s counsel sent proof of defense counsel’s office’s receipt.

The hearing is CONTINUED to allow plaintiff’s counsel to send courtesy copies to defense counsel and for defendant to serve responses.

Plaintiff is ordered to give notice of the ruling.

Case Number: BC648577    Hearing Date: July 28, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

STEPHEN EIGES,

Plaintiff,

Case No.:

BC648577

vs.

[Tentative] RULING

ALL AMERICAN ASPHALT,

Defendant.

Hearing Date: July 28, 2020

Moving Parties: Defendant All American Asphalt

Responding Party: Plaintiff Stephen Eiges

Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

BACKGROUND

On February 1, 2017, plaintiff Stephen Eiges filed a complaint against defendants All American Asphalt, The Albert Gross Limited Partnership, dba Westway Auto Dismantlers, Inc. for (1) negligence, (2) premises liability, (3) negligent infliction of emotional distress, and (4) intentional tort.

On October 17, 2018, the court sustained with leave to amend defendant All American Asphalt’s demurrer to the 4th cause of action for intentional tort, finding that the allegations were insufficient to establish a cause of action for ultrahazardous activity.

On November 8, 2018, plaintiff Stephen Eiges filed a First Amended Complaint against defendants for (1) negligence, (2) premises liability, (3) trespass, and (4) nuisance.

On February 13, 2019, the court granted defendant’s motion to strike plaintiff’s claim for punitive damages.

On June 26, 2020, the court granted defendant’s motion for summary judgment. There was no opposition filed. At the hearing, the court determined that plaintiff had not articulated good cause to continue the hearing.

On July 2, 2020, the court vacated the ruling on the MSJ and set a hearing on the MSJ to allow plaintiff to file an opposition.

LEGAL AUTHORITY

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 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 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.” CCP § 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.” CCP § 437c(p)(2). “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; CCP §437c(c). “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted). A defendant’s “conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” Yanez v. Plummer (2013) 221 Cal. App. 4th 180 187.

DISCUSSION

Defendant All American Asphalt (“AAA”) requests summary judgment on the FAC on the ground that there is no triable issue of fact and as a matter of law, it prevails. In the alternative, defendant requests summary adjudication as to each of the causes of action.

In the FAC, plaintiff alleges that from approximately March 2015 to 2016, defendants operated bulldozers and equipment next to 356 W. Redondo Beach Blvd., in Gardena. Defendants caused clouds of cement/asphalt toxic dust with toxic chemicals to be blown onto the premises. Plaintiff was lawfully in possession of and living at the premises. Defendants ignored plaintiff’s repeated requests to cease blowing and exposing him to clouds of cement/asphalt toxic dust with toxic chemicals being blown onto the premises. FAC, ¶5. In March 2015, as a result of such exposure, plaintiff began suffering various respiratory ailments necessitating medical treatment, such as an Albuterol inhaler. Id., ¶6.

Evidentiary objections

Plaintiff’s evidentiary objections are OVERRULED.

Defendant’s evidentiary objections are SUSTAINED.

1st cause of action for negligence and 2nd cause of action for premises liability

Civil Code § 1714(a) states, in part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . .” “The issue of whether a duty exists is a question of law to be determined by the court . . . .” Brooks v. Eugene Burger Management Corp. (1989) 215 Cal. App. 3d 1611, 1620.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998 (citing Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205; Civil Code § 1714(a)). “As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080 (citation omitted) (internal quotations omitted).

Defendant argues that plaintiff cannot establish the elements of breach and causation because no act or omission by AAA was a substantial factor in causing plaintiff’s harm.

Defendant presents evidence that on January 14, 2015, it entered into a written agreement with SVF Broadway Center Corporation, the owner of the property located at 15621 S. Broadway, Gardena, whereby defendant agreed to remove and dispose of an existing parking area surface and two feet of subgrade and to install a new concrete parking surface on the west side of the property within a 24-day period. Defendant’s Separate Statement of Undisputed Material Facts (“DUMF”) 4. During the SVF Project there were two days of saw cutting the concrete with water continually running to eliminate the dust; there were five days of removing the old concrete with an excavator, loader, and trucks; and remainder of the 18 work days involved laying out the work and installing a fence. DUMF 5. Defendant asserts that AAA was only performing the SVF Project from February 19, 2015 to March 16, 2015.

Defendant further contends that plaintiff testified at his deposition that he began seeing cement dust in the industrial park (the SVF Property) coming toward the premises on February 14, 2015 and that the cement dust came toward his home daily until June 2015. DUMF 6. Plaintiff complained about the alleged cement dust to the Department of Toxic Substances, the LA County Fire Department, the LA County Fire Department Hazardous Materials Division, the Department of Sanitations, Mark Ridley Thomas’ office, the County of Los Angeles Public Works Department, and the Southern California Air Quality Management Board. All of the entities directed plaintiff to the AQMD. DUMF 7.

Defendant further provides evidence that on February 19, 2015, plaintiff called the AQMD and complained about concrete dust in his neighborhood. DUMF 8. On February 20, 2020, AQMD Inspector Mitali Datta visited the SVF Project site, did not see any construction work going on, and thereafter called plaintiff and left a message informing plaintiff that she did not observe any construction activity at the SVF Project site. DUMF 9. On February 28, 2015, plaintiff again called the AQMD and complained that the construction work “next door” was causing dirt to enter his home and that the fence had been removed, allowing dust all over his property. DUMF 10. On March 4, 2015, Inspector Datta visited the SVF Project site and observed paving work during said inspection, but noted that everything was watered down and that defendant was not violating any of AQMD’s rules (Disposition type: In Compliance) and that it was not violating the Fugitive Dust Rule 403, which requires the dust to cross the property line for a violation. During the visit, Inspector Datta spoke to plaintiff, who showed her that part of the fence separating the two properties was broken. Inspector Datta contacted a supervisor and advised him of plaintiff’s complaint and the supervisor stated that defendant was trying to keep everything wet in order to mitigate the dust and offered to fix the broken fence at the property. DUMF 11.

Defendant further presents evidence that on July 31, 2015, after receiving multiple unfounded complaints about dust allegedly coming from the area of the SVF Property, Inspector Datta’s supervisor, Rodolfo Chacon, stopped assigning AQMD inspectors to visit the site and went to the site himself. After walking the subject area, Supervisor Chacon confirmed that there was no fugitive dust or any evidence of activity that would lead to complaints of such. His disposition was that the complainant, who he assumed was plaintiff because he recalls visiting plaintiff at the subject area, should be considered a “CHRONIC complainant.” DUMF 12. Plaintiff made six additional complaints to the AQMD about alleged fugitive dust, ranging from July 31, 2015 to August 4, 2015, none of which resulted in findings of any fugitive dust from the SVF Project site. DUMF 13.

Defendant asserts that in discovery, plaintiff produced photographs of dust on the premises, which he contends was caused by defendant, but that the photos were taken at different times on different dates, none of which have been identified by plaintiff. Plaintiff also produced photos and videos allegedly of the SVF Project site, but none show dust entering the premises from the SVF Project site. Plaintiff only gave a range of time of March 2015 and 2016 as the date on which the photos and video were taken. DUMF 14. After believing that Westway Auto Dismantlers was generating hazardous dust, plaintiff gathered dust from his porch and had it analyzed by Advanced Technology Laboratories on September 11, 2015. Though plaintiff claims that the analysis showed toxins in the sampled dust, plaintiff does not know what source produced the dust and does not recall the date he gathered the dust. DUMF 15. See Declaration of Suzanna R. Harman, Exhs. 2-10.

Accordingly, defendant argues, plaintiff is unable to show plaintiff’s exposure to toxic cement dust for which defendant is responsible.

The court finds that defendant has met its burden of showing that plaintiff cannot establish the elements of negligence and premises liability.

In opposition, plaintiff argues that the motion should be denied because his causes of action are supported by abundant evidence. Plaintiff presents his declaration, which states that during the period of about February 14, 2015 through March 2015, on the other side of the fence next to him, south of his home, he saw AAA workers using heavy equipment and blowing big clouds of cement dust onto his property for many days. Plaintiff’s decl., ¶1. He states that over time, on different days, he photographed and videotaped AAA workers using heavy equipment and blowing big clouds of cement dust onto his property. Id., ¶¶2, 4. He took photographs of Westway Auto Dismantlers “throwing up powder” for most of 2015. Id., ¶3. After March 2015, when he longer saw AAA using blowers and heavy equipment for its cement powder, there was continuing residual contamination of its cement dust lasting through about June 2015, inside his home, which continued to sicken his lungs. Id., ¶6. Plaintiff also presents the declaration of Bertha Castaneda who states that during 2015, she was the neighbor of plaintiff, when they both lived in a mobile home park. She states that for months in the earlier part of 2015, on the other side of the fence next to them, she saw workers using heavy equipment and blowing big clouds of cement dust onto their property. B. Castaneda decl., ¶1. She also states that there was another area next to their homes called Westway Auto Dismantlers, which was throwing up smoke into the air. Id., ¶2.

In reply, defendant reiterates its argument that plaintiff has not presented substantial competent evidence showing that plaintiff’s exposure to toxic concrete dust, if any, was caused by AAA. Defendant points out that plaintiff has failed to provide the dates of the photos and videos and that they lack foundation.

Based on the court’s rulings on the evidentiary objections, plaintiff has not provided substantial competent evidence to raise a triable issue of material fact that defendant breached a duty or that defendant was a substantial factor in causing plaintiff damages.

3rd cause of action for trespass

“’Trespass is an unlawful interference with possession of property.’ The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000).” Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5th 245, 262 (citations omitted).

Under this cause of action, plaintiff alleges that defendants knew that they were blowing or allowing clouds of cement and/or asphalt dust with toxic chemicals to be blown onto the premises and knew that same was dangerous and harmful to plaintiff, but nonetheless, despite plaintiff’s complaints and requests to stop, persisted in intentionally and recklessly blowing such clouds of cement and/or asphalt dust with toxic chemicals, knowing it would/could harm plaintiff. FAC, ¶20. During this period that defendants were utilizing heavy equipment and hand held shovels to blow heavy amounts/clouds of cement and/or asphalt dust with toxic chemicals onto the premises, defendants were engaged in the ultrahazardous activity of utilizing bulldozers to handle what appeared to be concrete/asphalt dust and were shoveling same such that it was causing or otherwise generating a large amount of cement and/or asphalt dust/clouds with toxic chemicals to be blown onto the premises. Id., ¶21.

As stated above, defendant presents evidence that shows that plaintiff cannot show that defendant intentionally, recklessly, or negligently entered onto plaintiff’s property or harm plaintiff or that defendant’s conduct was a substantial factor in causing plaintiff harm. Plaintiff has not presented substantial evidence to raise a triable issue of material fact.

4th cause of action for nuisance

The elements of a cause of action for nuisance are: (1) interference with plaintiff’s use and enjoyment of plaintiff’s property, (2) the invasion of plaintiff’s use and enjoyment involves substantial actual damage, and (3) the interference is unreasonable as to the nature, duration, or amount. San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.

As presented through the evidence above, defendant argues that plaintiff cannot show that the alleged toxic dust on the premises came from activities conducted by defendant. Further, defendant argues, plaintiff cannot show that any invasion of plaintiff’s interest in the use and enjoyment of his land caused substantial damages and was unreasonable. Defendant presents evidence that the AQMD performed investigations during and after the time defendant completed the project and that there were no findings of fugitive dust. As to the dust plaintiff gathered from the premises, plaintiff did not do so until several months after defendant completed the project and has not shown that it was caused by defendant.

As stated above, plaintiff fails to present substantial evidence to raise a triable issue of material fact.

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

Defendant is ordered to give notice of this ruling.

Case Number: BC648577    Hearing Date: June 26, 2020    Dept: SWM

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

STEPHEN EIGES,

Plaintiff,

Case No.:

BC648577

vs.

[Tentative] RULING

ALL AMERICAN ASPHALT,

Defendant.

Hearing Date: June 26, 2020

Moving Parties: Defendant All American Asphalt

Responding Party: None

Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues

The court considered the moving papers.

RULING

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

BACKGROUND

On February 1, 2017, plaintiff Stephen Eiges filed a complaint against defendants All American Asphalt, The Albert Gross Limited Partnership, dba Westway Auto Dismantlers, Inc. for (1) negligence, (2) premises liability, (3) negligent infliction of emotional distress, and (4) intentional tort.

On October 17, 2018, the court sustained with leave to amend defendant All American Asphalt’s demurrer to the 4th cause of action for intentional tort, finding that the allegations were insufficient to establish a cause of action for ultrahazardous activity.

On November 8, 2018, plaintiff Stephen Eiges filed a First Amended Complaint against defendants for (1) negligence, (2) premises liability, (3) trespass, and (4) nuisance.

On February 13, 2019, the court granted defendant’s motion to strike plaintiff’s claim for punitive damages.

LEGAL AUTHORITY

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 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 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.” CCP § 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.” CCP § 437c(p)(2). “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; CCP §437c(c). “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted).

DISCUSSION

Defendant All American Asphalt requests summary judgment on the FAC on the ground that there is no triable issue of fact and as a matter of law, it prevails. In the alternative, defendant requests summary adjudication as to each of the causes of action.

In the FAC, plaintiff alleges that from approximately March 2015 to 2016, defendants operated bulldozers and equipment next to 356 W. Redondo Beach Blvd., in Gardena. Defendants caused clouds of cement/asphalt toxic dust with toxic chemicals to be blown onto the premises. Plaintiff was lawfully in possession of and living at the premises. Defendants ignored plaintiff’s repeated requests to cease blowing and exposing him to clouds of cement/asphalt toxic dust with toxic chemicals being blown onto the premises. FAC, ¶5. In March 2015, as a result of such exposure, plaintiff began suffering various respiratory ailments necessitating medical treatment, such as an Albuterol inhaler. Id., ¶6.

1st cause of action for negligence and 2nd cause of action for premises liability

Civil Code § 1714(a) states, in part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . .” “The issue of whether a duty exists is a question of law to be determined by the court . . . .” Brooks v. Eugene Burger Management Corp. (1989) 215 Cal. App. 3d 1611, 1620.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998 (citing Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205; Civil Code § 1714(a)). “As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080 (citation omitted) (internal quotations omitted).

Defendant argues that plaintiff cannot establish the elements of breach and causation.

Defendant presents evidence that on January 14, 2015, it entered into a written agreement with SVF Broadway Center Corporation, the owner of the property located at 15621 S. Broadway, Gardena, whereby defendant agreed to remove and dispose of an existing parking area surface and two feet of subgrade and to install a new concrete parking surface on the west side of the property within a 24-day period. Defendant’s Separate Statement of Undisputed Material Facts (“DUMF”) 4. During the SVF Project there were two days of saw cutting the concrete with water continually running to eliminate the dust; there were five days of removing the old concrete with an excavator, loader, and trucks; and remainder of the 18 work days involved laying out the work and installing a fence. DUMF 5. Plaintiff testified at his deposition that he began seeing cement dust in the industrial park (the SVF Property) coming toward the premises on February 14, 2015 and that the cement dust came toward his home daily until June 2015. DUMF 6. Plaintiff complained about the alleged cement dust to the Department of Toxic Substances, the LA County Fire Department, the LA County Fire Department Hazardous Materials Division, the Department of Sanitations, Mark Ridley Thomas’ office, the County of Los Angeles Public Works Department, and the Southern California Air Quality Management Board. All of the entities directed plaintiff to the AQMD. DUMF 7.

Defendant further provides evidence that on February 19, 2015, plaintiff called the AQMD and complained about concrete dust in his neighborhood. DUMF 8. On February 20, 2020, AQMD Inspector Mitali Datta visited the SVF Project site, did not see any construction work going on, and thereafter called plaintiff and left a message informing plaintiff that she did not observe any construction activity at the SVF Project site. DUMF 9. On February 28, 2015, plaintiff again called the AQMD and complained that the construction work “next door” was causing dirt to enter his home and that the fence had been removed, allowing dust all over his property. DUMF 10. On March 4, 2015, Inspector Datta visited the SVF Project site and observed paving work during said inspection, but noted that everything was watered down and that defendant was not violating any of AQMD’s rules (Disposition type: In Compliance) and that it was not violating the Fugitive Dust Rule 403, which requires the dust to cross the property line for a violation. During the visit, Inspector Datta spoke to plaintiff, who showed her that part of the fence separating the two properties was broken. Inspector Datta contacted a supervisor and advised him of plaintiff’s complaint and the supervisor stated that defendant was trying to keep everything wet in order to mitigate the dust and offered to fix the broken fence at the property. DUMF 11.

Defendant further presents evidence that on July 31, 2015, after receiving multiple unfounded complaints about dust allegedly coming from the area of the SVF Property, Inspector Datta’s supervisor, Rodolfo Chacon, stopped assigning AQMD inspectors to visit the site and went to the site himself. After walking the subject area, Supervisor Chacon confirmed that there was no fugitive dust or any evidence of activity that would lead to complaints of such. His disposition was that the complainant, who he assumed was plaintiff because he recalls visiting plaintiff at the subject area, should be considered a “CHRONIC complainant.” DUMF 12. Plaintiff made six additional complaints to the AQMD about alleged fugitive dust, ranging from July 31, 2015 to August 4, 2015, none of which resulted in findings of any fugitive dust from the SVF Project site. DUMF 13.

Defendant asserts that in discovery, plaintiff produced photographs of dust on the premises, which he contends was caused by defendant, but that the photos were taken at different times on different dates, none of which have been identified by plaintiff. Plaintiff also produced photos and videos allegedly of the SVF Project site, but none show dust entering the premises from the SVF Project site. Plaintiff only gave a range of time of March 2015 and 2016 as the date on which the photos and video were taken. DUMF 14. After believing that Westway Auto Dismantlers was generating hazardous dust, plaintiff gathered dust from his porch and had it analyzed by Advanced Technology Laboratories on September 11, 2015. Though plaintiff claims that the analysis showed toxins in the sampled dust, plaintiff does not know what source produced the dust and does not recall the date he gathered the dust. DUMF 15. See Declaration of Suzanna R. Harman, Exhs. 2-10.

Accordingly, defendant argues, plaintiff is unable to show plaintiff’s exposure to toxic cement dust for which defendant is responsible.

The court finds that defendant has shown that plaintiff cannot establish the elements of negligence and premises liability.

There is no opposition. Thus, plaintiff has not met his burden of proof to raise a triable issue of material fact.

3rd cause of action for trespass

“’Trespass is an unlawful interference with possession of property.’ The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000).” Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5th 245, 262 (citations omitted).

Under this cause of action, plaintiff alleges that defendants knew that they were blowing or allowing clouds of cement and/or asphalt dust with toxic chemicals to be blown onto the premises and knew that same was dangerous and harmful to plaintiff, but nonetheless, despite plaintiff’s complaints and requests to stop, persisted in intentionally and recklessly blowing such clouds of cement and/or asphalt dust with toxic chemicals, knowing it would/could harm plaintiff. FAC, ¶20. During this period that defendants were utilizing heavy equipment and hand held shovels to blow heavy amounts/clouds of cement and/or asphalt dust with toxic chemicals onto the premises, defendants were engaged in the ultrahazardous activity of utilizing bulldozers to handle what appeared to be concrete/asphalt dust and were shoveling same such that it was causing or otherwise generating a large amount of cement and/or asphalt dust/clouds with toxic chemicals to be blown onto the premises. Id., ¶21.

As stated above, defendant presents evidence that shows that plaintiff cannot show that defendant intentionally, recklessly, or negligently entered onto plaintiff’s property or harm plaintiff or that defendant’s conduct was a substantial factor in causing plaintiff harm.

Plaintiff has not met his burden of presenting sufficient evidence to raise a triable issue of material fact.

4th cause of action for nuisance

The elements of a cause of action for nuisance are: (1) interference with plaintiff’s use and enjoyment of plaintiff’s property, (2) the invasion of plaintiff’s use and enjoyment involves substantial actual damage, and (3) the interference is unreasonable as to the nature, duration, or amount. San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.

As presented through the evidence above, defendant argues that plaintiff cannot show that the alleged toxic dust on the premises came from activities conducted by defendant. Further, defendant argues, plaintiff cannot show that any invasion of plaintiff’s interest in the use and enjoyment of his land caused substantial damages and was unreasonable. Defendant presents evidence that the AQMD performed investigations during and after the time defendant completed the project and that there were no findings of fugitive dust. As to the dust plaintiff gathered from the premises, plaintiff did not do so until several months after defendant completed the project and has not shown that it was caused by defendant.

Plaintiff fails to meet his burden of raising a triable issue of material fact.

The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.

Defendant is ordered to give notice of this ruling.

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