GLORIA DEL ROSARIO AUSTRIA VS. KYU LEE, ET AL

7/16/2026 – Law and Motion Calendar Judge: Honorable Mark A. McCannon – Department 2 Page 2 of 21

Case Title / Nature of Case

2:00 PM LINE: 1 23-CIV-02445 GLORIA DEL ROSARIO AUSTRIA VS. KYU LEE, ET AL

GLORIA DEL ROSARIO AUSTRIA SHARONA ESLAMBOLY HAKIM KYU LEE WILLIAM H. COKE

DEFENDANT, CROSS DEFENDANT AND CROSS COMPLAINANT KYU LEE'S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING: ______________________________________________________________________________________________ Plaintiff Gloria Del Rosario Austria alleges that she was injured after tripping and falling on the sidewalk in front of Defendant Kyu Lee’s house. Plaintiff has sued Defendant Lee for Negligence and Premises Liability. Defendant Lee has moved for summary judgment or, alternatively, summary adjudication, as to both claims.

Defendant’s motion for summary judgment is GRANTED.

Plaintiff’s objections #1-10 are OVERRULED.

LEGAL STANDARD

“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 of Civ. Proc., § 437c, subd. (a)(1).) Summary judgment will only be granted “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 a judgment as a matter of law.” (Id., at subd. (c).)

“A party may move for summary adjudication as to one or more causes of action within an action ... if the party contends that the cause of action has no merit ... .” (Code of Civ. Proc., § 437c, subd. (f)(1).) A cause of action has no merit if one or more of its elements cannot be separately established or an afÏrmative defense can be established. (Id., subd. (o).)

A defendant moving for summary judgment or summary adjudication has an initial burden of showing either that one or more elements of a cause of action cannot be established or that there is a complete defense to the cause of action. (Code of Civ. Proc., § 437c, subd. (p)(2).) Once the initial burden has been carried, the burden shifts to the opposing party to show that a triable issue of material fact exists as either to the cause of action or a defense thereto, as applicable. (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

The moving party’s ultimate burden of persuasion that there are no issues of triable fact, however, never shifts to the opposing party. (Aguilar, 25 Cal.4th at 850.) This burden is unaffected by the strength or weakness of the showing in opposition to the motion (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519), and

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summary judgment must be denied—despite deficiencies in the opposition—if the burden has not been carried (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416).

Because summary judgment deprives an adverse party of the right to a trial, any doubts are resolved in favor of the party opposing the motion. (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830; See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900.) Thus, “[t]he moving party’s afÏdavits are to be strictly construed, and ... all conflicts in the afÏdavits are to be resolved in favor of the opposing party and all reasonable inferences are to be drawn in favor of that party as well.” (Hufv v. Horowitz (1992) 4 Cal.App.4th 8, 20.)

LEGAL ANALYSIS

Plaintiff’s Objections Fail

Plaintiff objects to several questions asked during her deposition concerning whether she remembers where, how and why she fell, including the following (in order from objection #1 to 10): (1) Is this where you fell where the accident occurred? (2) Do you know why you fell to the ground that day? (3) You don’t know why you fell? (4) Do you know if something caused you to trip and fall? (5) You don’t know what caused you to fall? (6) And you don’t know why you fell? (7) So it’s your testimony you don’t know why you fell? (8) Do you believe you tripped over something on the sidewalk when you fell? (9) Do you know why you fell? (10) Was there as specific thing on the sidewalk that caused you to fall?

(See Plaintiff’s Objections, Nos. 1-10.)

Plaintiff objects to each question on the same bases: lack of foundation; inadmissible speculation and conclusions; improper lay opinion; and call for expert opinion. (Ibid.)

Defendant argues that the objections are untimely and that questions to the form of question must be made at the time of the deposition when the question was asked. The Court need not reach those issues here. Each of the questions is a proper personal knowledge question asking Plaintiff to describe her firsthand experience of an event she personally witnessed and was involved in. Plaintiff has personal knowledge of her fall by definition. The questions do not call for speculation but rather call for Plaintiff’s own sensory experience. For those same reasons, the questions do not call for expert testimony and Plaintiff’s answers do not constitute improper lay opinion. The Court acknowledges that Plaintiff’s answers are not dispositive to her claims, which may be supported by other evidence.

Plaintiff’s objections #1-10 are OVERRULED.

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Plaintiff Has Not Presented Evidence Creating Triable Issues of Fact

Negligence and premises liability claims share identical elements under California law. The elements are: (1) a legal duty of care owed by the defendant to the plaintiff, (2) breach of that duty, and (3) proximate cause resulting in injury and damages. (Martin v. Gladstone (2023) 96 Cal.App.5th 681, 689; Gonzalez v. Interstate Cleaning Corp. (2024) 106 Cal.App.5th 1026, 1034.) For premises liability, the duty element requires that the property owner have actual or constructive knowledge of the dangerous condition, or should have been able to discover it through exercise of ordinary care. (Joshi v. Fitness Int'l, LLC (2022) 80 Cal. App.5th 814, 832-33.)

Defendant argues that both of Plaintiff’s causes of action fail because Plaintiff testified at her deposition that she does not recall where on the sidewalk she fell. Thus, Plaintiff cannot establish that she fell on the portion of the sidewalk in front of Defendant’s house. Defendant has submitted evidence that Plaintiff consistently testified at her deposition that she does not recall where she fell on sidewalk along the residential block where Defendant’s house is located. (Coke Decl., Ex. B, Plaintiff’s Deposition Transcript, 20:10-12, 30:8-16, 58:25 – 59:18, 60:15-22.)

Defendant has further presented evidence of Plaintiff’s deposition testimony in which Plaintiff testified that she does not know why she fell; that there was no specific thing on the sidewalk that caused her to fall; that she walked on that sidewalk many times over the years, including twice a day during the six months leading up to the fall; and that she never noticed any change to the conditions on the sidewalk prior to the fall. (Id., at 26:18 – 27:6, 28:18 – 29:5, 30:24 – 31:11, 33:20-24, 53:25 – 54:3, 61:10-13.)

Finally, Defendant has submitted a declaration by Lisa Lee, Defendant’s daughter, who has been acting as the property manager for the subject property since at least January of 2021. (Lee Decl., ¶¶ 2, 5.) Ms. Lee declares that there have never been any complaints or warnings from their tenants or anyone else to her or her parents regarding cracks or any other dangerous conditions to the sidewalk in front of their property. (Id., ¶¶ 7-9.)

Defendant has also presented evidence negating actual or constructive notice of any dangerous condition on the sidewalk in front of the property.

Plaintiff argues that she need not remember her fall to recover on her claims against Defendant. Plaintiff argues that she testified she tripped on the sidewalk in front of a brown house on the block where Defendant’s house is located. (Oppo., 8:26-28, citing Plaintiff’s Response to Defendant’s UMF No. 14, 15, 19.) Plaintiff argues her deposition was taken approximately three years after the incident and that she sustained substantial trauma to her face and eye during the fall, both of which have affected her ability to recall details about the incident. (Oppo., 9:3-8.) Plaintiff further argues that her husband was with her at the time of the fall and was a witness to the incident and took pictures of the area where she fell. (Oppo., 9:8-12.)

While the Court agrees that Plaintiff need not necessarily recall the fall to recover on her claims, Plaintiff still must present other admissible evidence to establish triable issues as to the location of the fall, Defendant’s breach, and causation. Plaintiff has failed to do so. The only evidence presented by Plaintiff is her full deposition transcript, without highlights to relevant testimony. Plaintiff testified at her deposition that while she did not recall the number of the house she fell in front of, she recalls that it was “light brown or brown something.” (Coke Decl., Ex. B, 30:8- 23.) However, Plaintiff has not presented any evidence that Defendant’s house matches that description.

Separately, even if the Court were to assume that Defendant’s house matched the brown house described in Plaintiff’s deposition, Plaintiff has provided no evidence to establish a triable issue of fact that any dangerous or

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otherwise unreasonable condition of the sidewalk caused her to fall. In Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733-34, the court afÏrmed summary judgment where the plaintiff had no idea what caused her to fall, finding that conjecture that the floor might have been defective at the location where the plaintiff happened to fall is mere speculation legally insufÏcient to defeat summary judgment. (See also, Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035-36 [absent any evidence of dangerous condition at location of fall, speculation does not establish causation].) Here, Plaintiff similarly relies on conjecture and speculation that is insufÏcient to defeat summary judgment.

Plaintiff argues that her husband was with her during the incident and allegedly took photographs of the area after the incident. However, Plaintiff has submitted no evidence of her husband’s account of the events or the alleged photographs taken after the incident. Unproduced witness testimony cannot create a triable issue of fact. (Wall St. Network, Ltd., v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1190-91 [trial court properly declined to consider alleged testimonial evidence not included with opposition where subject witness was available].) A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture; the party must produce admissible evidence raising a triable issue of fact. (Restivo v. City of Petaluma (2025) 111 Cal.App.5th 267, 279.)

Accordingly, Defendant Lee’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims against Defendant for negligence and premises liability.

Any party who contests a tentative ruling must email Dept2@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests. The Court reminds parties argument will not be heard on the set hearing date. Parties will be notified of the date set for any argument if the motion is contested.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare for the Court’s signature a written order and judgment in two separate documents consistent with the Court’s ruling, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.