Motion for Summary Judgment / Summary Adjudication
“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81- day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c(a)(2).)
On February 26, 2026, the Court granted Plaintiffs’ counsel’s motions to be relieved as counsel of record for Kimberly Potter, indicating that the “withdrawal is only effective upon the filing of a proof of service of this [signed] order on Plaintiff.” (ROA 413.)
The Court’s file reflects that proof of service of the order granting the motion to be relieved as counsel of record was filed on April 6, 2026. (ROA 463, 465.)
After the Court granted Plaintiff’s counsel motion to be relived as counsel on February 2026, but before proof of service of the order granting the motion to be relieved as counsel of record was filed on April 6, 2026, Defendant, Brookdale Living filed and served the instant motion for summary judgment, or in the alternative, summary adjudication on March 25, 2026.
The proofs of service attached to the moving papers indicate that the moving papers were served on Kimberly Potter on March 25, 2026, by electronic service only.
California Rules of Court, rule 2.253(b)(2) provides that “[s]elf-represented parties or other self-represented persons are exempt from any mandatory electronic filing and service requirements adopted by courts under this rule and Code of Civil Procedure section 1010.6.” Additionally, “[i]n civil cases involving both represented and self-represented parties or other persons, represented parties or other persons may be required to file and serve documents electronically; however, in these cases, each self-represented party or other person is to file, serve, and be served with documents by nonelectronic means unless the self-represented party or other person affirmatively agrees otherwise.” (
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“An unrepresented party may consent to receive electronic service.” (Code Civ. Proc. §1010.6(c)(2).)
Express consent to electronic service may be given by either (1) serving a notice on all parties and filing the notice with the court, or (2) “[m]anifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” (Code Civ. Proc. §1010.6(c)(3)(i)-(ii).) California Rules of Court, rule 2.251(b) sets forth similar ways in which a party may agree to accept electronic service.
Kimberly Potter is self-represented. It does not appear that Kimberly Potter has affirmatively agreed to accept service by electronic means. Nor has Kimberly Potter filed an opposition to the instant motion for summary judgment and/or summary adjudication.
Under these circumstances, it does not appear that Defendant Brookdale Senior Living, Inc. properly served the moving papers on Kimberly Potter. Consequently, Brookdale Senior Living Inc.’s motion for summary judgment and/or summary adjudication is DENIED, without prejudice.
The Court orders clerk to give notice. 107 Ariaga vs. City of Brea, 24-01403550 Defendant, City of Brea (“Brea”), moves for an order granting summary judgment in favor of Brea as to the Complaint of Plaintiff, Melva Ariaga (“Plaintiff”).
This motion for summary judgment originally came on for hearing on May 29, 2025, and was continued for proper submission of evidence by Plaintiff. Plaintiff has since lodged the video referenced in the Declaration of Art Ariaga.
Brea contends that it is entitled to summary judgment on two separate grounds, each of which is independently sufficient to merit summary judgment in favor of Brea. Brea contends that it is entitled to summary judgment on the ground that the defect alleged by Plaintiff was a trivial defect as the uplift in the sidewalk at issue measured less than one inch at all points, and there were no aggravating circumstances. Brea also contends that Plaintiff’s claim would still fail as Plaintiff cannot establish that Brea had actual or constructive notice of the alleged defect. Brea additionally asserts that Brea cannot be held liable for Plaintiff’s claims for general negligence and willful failure to warn under Civil Code section 846, as a matter of law.
Plaintiff contends that tape measures do not dictate premises liability, and that the defect was not trivial due to aggravating conditions, such as a visual “camouflage effect” created by heavy tree shadows. Plaintiff also contends that there is a genuine dispute of material fact regarding the size of the defect, that Plaintiff’s biomechanical expert establishes that the 1.25 inch uplift was significantly higher than Plaintiff’s natural toe clearance making the probability of a trip occurring a near certainty, which was compounded by the “camouflage effect”, and that Brea did not adhere to its own safety standards set forth in Municipal Code sections 12.08.010 and 12.20.080, and Standard Plan 103-0.
Plaintiff additionally contends the triable issue of fact exist regarding Brea’s constructive notice as Brea’s claimed lack of notice of the defect is directly contradicted by historical evidence and Brea’s own internal records. Lastly, Plaintiff provides that Plaintiff concedes that her common law general negligence claim and claims under Civil Code section 846 are precluded.
Plaintiff’s Objections to Evidence The Court SUSTAINS Objection Nos. 1 and 2 (to Declaration of Gerardo Mestas).
The Court SUSTAINS Objection No. 3 (to Declaration of Mario Maldonado).
Brea’s Objections to Evidence The Court SUSTAINS Objection Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.
Standard for Motion for Summary Judgment and Allegations in Complaint “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).)
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 he or she shows one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc. § 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 that cause of action or a defense. (Ibid.) A plaintiff must set forth specific facts showing that a triable issue of material fact exists as to a cause of action or a defense thereto. (Ibid.)