Zolnikov v. Giron, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

23CV006108: ZOLNIKOV vs GIRON, et al. 07/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16D

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

****NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. MOTIONS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE.*****

TENTATIVE RULING:

Defendant Bonney Plumbing, LLC’s (“Defendant”) motion for summary judgment, or in the alternative, for summary adjudication is DENIED.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Undisputed Material Facts offered by the moving defendants and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Moving counsel failed to comply with California Rules of Court, rule 3.1350(g), requiring a separate volume of evidence (including all declarations) with a table of contents when the evidence exceeds 25 pages.

Moving counsel failed to comply with California Rules of Court, rule 3.1350(b), requiring that each issue presented for summary adjudication be stated in the notice of motion and then repeated verbatim in the separate statement.

Moving counsel failed to comply with California Rules of Court, rule 3.1350(d)(3), requiring citations to supporting and opposing evidence include reference to the exhibit, title, page, and line numbers.

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Opposing counsel failed to comply with California Rules of Court, rule 3.1110(f)(4), which requires that “electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Compliance with the rule is necessary to ensure the Court can easily and quickly locate the referenced exhibits. Failure to comply with these requirements in the future may result in papers not being considered, matters being continued so that papers may be submitted in the proper format, and/or the imposition of sanctions.

Opposing counsel failed to comply with California Rules of Court, rule 3.1350(f)(2), which requires, “An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.”

On July 14, 2026, Plaintiff filed an unauthorized sur-reply. This document was not considered by the Court.

I.

Background

This action arises from a real property dispute between neighbors regarding a sewer easement. Plaintiff Pavel Zolnikov (“Plaintiff”) alleges that he is the owner of an undeveloped parcel of land located at 5204 Valonia Street, Fair Oaks, California. (Complaint, ¶ 2.) Defendant Vanessa Giron (“Giron”) is allegedly the owner of an adjacent parcel of developed land located 5208 Valonia Street, Fair Oaks, California. (Id., ¶ 3.) Plaintiff alleges that the two parcels were part of a single plot of land that was subdivided on September 23, 2019. (Id., ¶ 12.) Plaintiff alleges that at the time of the subdivision of the parcels there existed a recorded 12.5-foot public utility sewer easement and a private 40 foot by 12.5-foot private sewer easement was contemplated but never approved or recorded. (Id., ¶ 14.)

Plaintiff alleges that on August 10, 2022, he was removing dirt from in front of his undeveloped property when he struck the sewer line originating from Giron’s parcel. (Id., ¶¶ 17-18.) Plaintiff alleges that this sewer line was improperly and illegal installed in that it was above ground and unrecorded. (Id., ¶ 18.) Plaintiff allegedly attempted to contact Giron to remedy the situation, but she refused to respond. (Id., ¶ 19.) Plaintiff alleges that on August 11, 2022, he received two telephone calls from employees with the Sacramento Area Sewer District (“SASD”), where Plaintiff was repeatedly assured that Giron would have to negotiate any access across his property directly with him as the appurtenant property owner and that SASD would not be involved in resolving the matter as it related to a private sewer line. (Id., ¶ 21.)

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Plaintiff alleges on August 15, 2022, he discovered Defendant on his property with a crew of workers installing a new sewer line without notice, prior permission, or consent. (Id., ¶ 22.) Plaintiff alleges as a result of the installation, Plaintiff no longer has access to the Lower Lateral Public Cleanout in front of his property. (Id., ¶ 23.) Plaintiff further alleges that SASD does not allow adjacent neighbors to share a single lower lateral public cleanout, which means that Plaintiff has no other option but to have a new lower lateral public cleanout installed in front of his property at great personal expense and inconvenience. (Id., ¶ 24.)

Plaintiff filed his Complaint on August 4, 2023. Plaintiff alleges four causes of action against moving Defendant: trespass, negligence, negligence per se, and private nuisance.

Defendant moves for summary judgment or, in the alternative, summary adjudication of the Complaint. (Notice at p. 1:24-26.) Defendant does not list any issues for summary adjudication in its notice of motion.

Plaintiff opposes, arguing that the entire motion fails because Defendant cannot establish that the installation of a private sewer line serving Giron’s residence is authorized by the public utility easement.

Trial is scheduled for August 25, 2026.

II.

Legal Standard

In evaluating a motion for summary judgment or adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat [defendant’s] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.” (Melican v.

Regents of University of

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California, (2007) 151 Cal.App.4th 168, 176-177.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 [quoting Code Civ. Proc. §437c(p)(2)].) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v.

Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal.4th at pp. 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, 25 Cal.4th at p. 854-855, n.23; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc. § 437c(p); See generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is that California Rule of Court, Rule 3.1350, subdivision (b) mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure §437c, subdivision (f)(1) provides in its entirety:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

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Additionally, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at p. 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1]; see also Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 521.) Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

III. Evidentiary Rulings

Pursuant to California Rules of Court, rule 3.1354(b), “[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in the opposition to the motion.” To the extent Plaintiff has raised objections to certain evidence offered by Defendant in Plaintiff’s response to the separate statement, such objections are overruled because Rule 3.1354 expressly requires written objections be set forth in a separate document and also quote the objectionable material. To the extent Plaintiff’s objections are directed to the Undisputed Material Facts (“UMF”) themselves, such objections are overruled because objections must be directed at evidence presented. (See Cal. Rules of Court, rules 3.1352, 3.1354.)

Plaintiff’s objections to the Declaration of Matt Picciano (“Picciano Decl.”) are sustained as follows: Plaintiff's objections to the entirety of declarant's statements in paragraph 9 made "on information and belief," are sustained on grounds of hearsay, lack of personal knowledge and lack of foundation. Plaintiff's objections to declarant's statements in paragraphs 5-10 to the extent they assert or include exhibits containing third party statements asserting that Defendant had a "legal right" to enter Plaintiff's property and "that the easement authorized the work performed" are sustained on grounds of lack of foundation, lack of personal knowledge, and improper legal conclusion. The Court overrules the remaining objections and finds that they are not material to the disposition of this motion.

Defendant’s unopposed request for judicial notice is granted for the limited purposes permitted for judicial notice. (See, Evid. Code, § 451, subd. (a); § 452, subds. (b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not the truth of the statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.)

Defendant did not file objections to Plaintiff’s evidence.

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IV.

Discussion

A. Defendant’s Motion for Summary Adjudication

As a threshold matter, Defendant fails to comply with California Rule of Court, rule 3.1350(b) requiring the verbatim repetition of the issues from the Notice of Motion. As noted in Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, this is an issue of due process. (Id. at pp. 743- 744 [citing Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546 [summary adjudication must include proper notice of each issue to be adjudicated so that opposing party does not raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues].)

Indeed, failure to comply with California Rule of Court, rule 3.1350(b) is sufficient grounds to deny a motion for summary adjudication. (Schmidlin, supra, 157 Cal.App.4th at p. 744 [“Here defendants’ separate statement reflects no attempt to comply with that requirement. That alone precludes a holding that the trial court erred in denying the motion”].)

Here, Defendant’s notice of motion does not include any of the three issues[1] for summary adjudication identified in the separate statement. Accordingly, Defendant’s alternative request for summary adjudication is DENIED because Defendant fails to comply with Rule 3.1350

B. Defendant’s Motion for Summary Judgment

1. Defendant’s Initial Burden

To prevail on the instant motion, Defendant must establish it is entitled to summary judgment as to every cause of action alleged against it in the Complaint. As indicated earlier, on summary judgment or summary adjudication, a moving party must meet his initial burden regardless of whether the opposing party disputes any issues of material fact. (See Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087 [“[t]he lack of opposition in the instance case thus was an improper ground upon which to grant summary judgment, in the absence of finding that defendant met its initial burden of proof.”) Here, Defendant relies upon its asserted UMFs 1-31 in seeking summary judgment.

Therefore, Defendant’s failure to sufficiently establish any UMF and/or Plaintiff’s raising of a triable issue of material fact as to any UMF will warrant denial of Defendant’s motion. As explained herein, Defendant has failed to meet its initial burden for multiple and independent reasons.

In its moving papers, Defendant generally contends that it performed sewer work on an express public utility easement granting access for such work and that it was acting within the scope of the easement. (Memorandum at p. 6:22-7:1.) Defendant expressly relies upon this premise in challenging multiple causes of action. In opposition, among other points, Plaintiff argues that the

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public utility easement does not, by its express terms, identify a sewer easement and does not clearly authorize the use claimed by Defendant. (Opposition at p. 12:14-15:11.)

Pursuant to Civil Code section 806, “The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.” “An easement is a restricted right to specific, limited, definable use or activity upon another’s property, which right must be less than the right of ownership.” (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261.) “In construing an instrument conveying an easement, the rules applicable to the construction of deeds generally apply. If the language is clear and explicit in the conveyance, there is no occasion for the use of parol evidence to show the nature and extent of the rights acquired.” (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702.) Pertinent to this motion, California law describes public utility easements as follows:

Public utility easements arise from the terms of Government Code section 66475, which provides that as a condition of approving a subdivision map a local government may require the subdivider to dedicate real property for public utility easements. Such easements are not granted in the public streets and highways, but are upon the real property purchased by the purchasers of the subdivided lots. Neither the easements nor the servient estate are granted to the County; rather the easements are expressly dedicated to the public utility purposes. It is fundamental that the language of a grant of an easement determines the scope of the easement. . . . Public utility easements, by their express terms, define the class of persons who have an interest or right in the use of the easement, and these easements do not extend rights to the public in general or to the County in particular.

(County of Sacramento v. Pacific Gas & Elec. Co. (1987) 193 Cal.App.3d 300, 313 [emphasis added].)

On Plaintiff’s parcel map, the “Owner’s Statement” includes the public utility easement and states:

THE REAL PROPERTY DESCRIBED BELOW IS DEDICATED AS AN EASEMENT FOR PUBLIC PURPOSES;

THE UNDERSIGNED HEREBY OFFER(S) FOR DEDICATION AND DO(ES) HEREBY DEDICATE TO ANY AND ALL PUBLIC USES AND DO(ES) HEREBY DEDICATE TO SPECIFIC PURPOSES THE FOLLOWING:

1) AN EASEMENT FOR PLANTING AND MAINTAINING TREES,

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ELECTROLIERS, TRAFFIC CONTROL DEVICES, INSTALLATION OF WATER, GAS AND DRAINAGE PIPES, AND FOR POLES AND OVERHEAD AND UNDERGROUND WIRES AND CONDUITS FOR ELECTRICAL, TELEVISION AND TELEPHONE SERVICES, TOGETHER WITH ANY AND ALL APPURTENANCES PERTAINING THERETO, ON, OVER, UNDER AND ACROSS STRIPS OF LAND 12.5 FEET IN WIDTH LYING CONTIGUOUS TO THE PUBLIC WAY SHOWN HEREON AND DESIGNATED '12.5' PUBLIC UTILITY EASEMENT'.

(Piccano Decl., Ex. E; Declaration of David Pfaff (“Pfaff Decl.”), Ex. 11.)

The Court finds that Defendant’s motion is premised on an unsupported assumption that because a public utility easement exists on Plaintiff’s property, Defendant was also permitted to install Giron’s own sewer line. Neither party disputes that the easement at issue is a public utility easement and that at no time did Giron maintain a private easement to conduct the construction at issue on Plaintiff's property. Defendant fails to cite legal authority that expressly discusses whether and under what circumstances a private landowner who has no private right of easement may nonetheless construct improvements for the benefit of its own property based upon a public utility easement.

Nor does Defendant analyze the express language of the at-issue public utility easement and/or how such language effectively grants to Giron the individual right to build the improvements that Defendant constructed in this instance. Defendant’s failure to provide sufficient legal analysis of this issue alone constitutes a failure of Defendant to satisfy its initial burden.

Further, while Defendant relies upon the text of the public utility easement to justify its construction of a sewer line, the easement language does not expressly include the word “sewer” or specifically address locating and constructing “sewer” lines. Again, Defendant fails to analyze the omission of such language and/or provide any authority demonstrating whether the easement at issue and its specific language must be construed to specifically encompass the construction of “sewer” lines. Similarly, to the extent Defendant implies that the easement’s reference to “drainage pipes” also encompasses “sewer” lines, Defendant provides no legal authority or analysis in such regard.

As a result, even if Defendant had established that, as a private landowner without a private right of easement, Giron was individually entitled to exercise the rights of a public utility easement as a matter of law (which Defendant has not addressed), Defendant has still failed to establish that the easement extends to the “sewer” line construction at issue. This constitutes yet another failure of Defendant to satisfy its initial burden.

Additionally, even if Defendant had established that Giron may individually rely upon the public utility easement and that the easement applies to “sewer” line construction (neither of which Defendant has done), Defendant provides no legal authority that the easement allows

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improvements to be constructed by Defendant in its capacity as a contractor for a private landowner such as Giron. Indeed, the public utility easement appears, by its terms, to be limited to work conducted by and/or on behalf of a public utility. Defendant provides no evidence or argument that it was retained by and therefore acting on behalf of the SASD or that Defendant itself otherwise should be construed as a public utility such that the easement may extend rights to Defendant to perform work thereunder.

While Defendant offers evidence that SASD "certified" that Defendant "had access rights to tap into the City tap that stands on the easement," that it "okayed the installation," and that the County "approved the work" (see UMFs 20-22), these asserted facts even if true do not address, much less answer, the threshold legal issue of whether and if so, under what circumstances, a public utility easement may allow a private landowner to retain its own private contractor to perform work for the private landowner based upon the easement.

Nor does Defendant address whether and if so, under what circumstances, the right holder under a public utility easement may delegate its rights to a private party, or that such delegation of rights actually occurred in this instance. These omissions again constitute a separate failure by Defendant to satisfy its initial burden. While the Court need not proceed further, it does so to demonstrate additional independent deficiencies in Defendant's motion.

Not only do Defendant’s failures to address the issues noted above constitute failures to satisfy Defendant’s initial burden, but the Court also concludes that Defendant has similarly failed to meet its initial burden with respect to its asserted UMF 15. UMF 15 states, “Prior to commencement of the work, Bonney confirmed the existence of the public utility easement, and that "the easement provided authority to perform the sewer services repair services.” (Separate Statement at p. 6:12-15.) None of the evidence supplied in support of Defendant’s asserted UMF 15 establishes that the public utility easement “provided authority” to either Giron individually and/or Defendant “to perform the sewer service repair services” as UMF 15 appears to imply.

Conversely, if Defendant did not intend for UMF 15 to imply that Giron and/or Defendant are the parties for whom “the easement provided authority to perform the sewer services,” then Defendant’s motion fails to supply adequate UMFs to warrant summary judgment. Further, UMF 15’s vague statement “that the easement provided authority to perform the sewer services” is unsupported in that the easement does not reference “sewer” services as discussed earlier. These deficiencies alone demonstrate that Defendant failed to support either the express or implied facts asserted by UMF 15.

Additionally, the evidence offered by Defendant to support asserted UMF 15 does not support the assertion that "the easement provided authority to perform the sewer services repair" by Defendant. Defendant cites its “Additional Plumbing Services Invoice.” (Picciano Decl., Ex B.) This is a business record that recites a summary of the events that occurred while Defendant was performing the sewer line installation for Giron. It states, in relevant part:

multiple agencies were contacted including city sewer county sewer and code

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enforcement to enforce easement rights. Main supervisor for the county of Sacramento sewer district Bruce was contacted in person by Bonney. Bruce certified that we did have access and rights to tap into the city tap that stands on Easement on parcel one. And OK the installation of new sewer line building for county was also Out and approved work. permits were pulled for installation of new sewer line and were approved by county. Code enforcement also showed upon job to enforce easement rights and also OK with job.

This document alone, in the absence of legal argument and authority analyzing the easement and Defendant’s entitlement to avail itself of the easement, is not sufficient to support the assertion that “the easement provided authority to perform the sewer services repair services” by Giron and/or Defendant. The Court has sustained Plaintiff's objections to these third-party statements to the extent they are offered to demonstrate that the easement actually authorized the work at issue. Irrespective of whether the invoice itself may be admissible under Evidence Code section 1271, such admissibility cannot and does not extend to the truth of a legal conclusion voiced by a third party.

Indeed, the mere fact that Defendant reports that a person described as the “main supervisor” for SASD personally declared that Defendant had “access and rights to tap into the city tap that stands on Easement on parcel one” does not demonstrate as an undisputed fact that the public utility easement granted rights to Giron and thereby allowed Defendant to perform the “sewer” line work at issue. Mere statements by individuals as such do not define, as a matter of law, the scope of and right holders under the public utility easement.

While such communication might be asserted to the extent Defendant sought to establish its own reliance thereon and while such reliance may have legal relevance in this action, it does not and cannot establish the fact which Defendant asserts in UMF 15, which is that "the easement provided authority to perform the sewer services repair," much less the repair as conducted by Giron through Defendant. As this inadmissible evidence is the only evidence offered in support of UMF 15, Defendant has failed to satisfy its initial burden to establish UMF 15.

Nor can Defendant claim at this point that UMF 15 is somehow unnecessary to the success of Defendant's motion as Defendant has conceded the materiality of UMF 15. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 521.) This additional deficiency alone constitutes another independent basis warranting denial of Defendant's motion.

Again, while the Court need to proceed further, it finds that Defendant also fails to meet its initial burden with respect to UMF 30 and 31. UMF 30 states, “Plaintiff has produced zero evidence or stated any fact in written discovery to even support Bonney exceeded the scope of the public utility easement or even committed a trespass, at all.” (Separate Statement at p. 10:23- 26.) UMF 31 states, “Plaintiff has produced zero evidence or stated any fact in written discovery to support a claim that Bonney’s work caused substantial damage to his property or was unreasonable.” (Separate Statement at p. 11:4-7.) In support of these UMFs, Defendant cites

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“Plaintiff’s Responses to Ms. Giron’s Requests for Admission, Plaintiff’s Response to Ms. Giron’s Form Interrogatories, Plaintiff’s Responses to Ms. Giron’s Request for Production of Documents.” (Declaration of Jeffrey Schultz, Exs. A-C.) The cited evidence is comprised of 56 pages discovery requests and responses and includes 170 unique requests and responses.

The Court finds that asserted UMFs 30 and 31 are not proper material facts in support of a motion for summary judgment or adjudication. In this regard, California Rules of Court rule 3.1350(a)(2) defines “material facts” as “facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” Facts are colloquially understood as a proposition or assertion that can be established by evidence as either true or false.

In other words, it is something that can be proven or disproven. The Court notes that a “fact” is inherently different than an “argument.” Here, UMFs 30 and 31 do not appear to assert any fact negating any element of any cause of action against Defendant, but rather appear to make the argument that Plaintiff has “produced zero evidence” to support the following four propositions: (1) “Bonney exceeded the scope of the public utility easement”; (2) “Bonney . . . even committed a trespass, at all”; (3) Bonney’s work caused substantial damage to his property”; and (4) “Bonney’s work . . . was unreasonable.”

As a preliminary matter, to the extent Defendant intended UMFs 30 and 31 to support an unstated proposition that Plaintiff cannot prove any of the previous four assertions, Defendant’s motion is inherently deficient. It is not enough for Defendant to show merely that Plaintiff “has no evidence” on a key element of Plaintiff’s claim. Defendant must also produce evidence showing that Plaintiff cannot reasonably obtain evidence to support that claim. (Gaggero v. Uma (2003) 108 Cal.App.4th 884, 891; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) Simply citing a particular group of discovery responses from Plaintiff to assert that such group of responses do not include evidence to support Plaintiff’s allegations does not also demonstrate that Plaintiff cannot reasonably obtain evidence to support its claims. On this basis alone, Defendant’s motion fails.

Furthermore, Defendant’s presentation of UMFs 30 and 31 is also defective. For example, the California Rules of Court require the separate statement in support of a motion for summary judgment or adjudication to separately identify each supporting material fact. (Cal. Rules of Court, rule 3.1350(d)(1)(B).) However, UMF 30 and 31 both appear to assert at least two different facts each. Moreover, “[t]he separate statement serves two important functions in a summary judgment proceeding: it notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v.

Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) Separate statements “are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for

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[summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are disputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.) “The due process aspect of the separate statement requirement is self-evident – to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.) In addition, “[a] properly prepared separate statement can materially ease the trial court’s burden. [It] should list in numbered paragraphs without argumentation each material fact necessary to entitle the moving party to summary judgment.” (Blackman v.

Burrows (1987) 193 Cal.App.3d 889, 895-896.) However, a separate statement can only serve this purpose if both parties prepare their respective separate statements in good faith and according to the statute and rules of Rules of Court. (Beltran v. Hardrock Hotel Licensing (2023) 97 Cal.App.5th 865, 876.)

Here, rather than presenting a separate statement which identifies each material fact at issue, with each discrete material fact supported by a citation to specific evidence, Defendant has provided a separate statement which contains overly broad UMFs 30 and 31 followed by general citations to more than 56 pages of discovery responses, containing 170 unique requests and responses. Defendant was required to properly identify the specific evidence it seeks to use in seeking summary judgment so that Plaintiff may respond directly thereto (and the Court may evaluate such specific evidence and response).

For instance, if Defendant were to assert as a UMF that “Bonney did not exceed the scope of the public utility easement” and Defendant correspondingly argues that Plaintiff does not possess and cannot reasonably obtain evidence to contradict such asserted point, it was incumbent upon Defendant both to cite to evidence affirmatively supporting such contention as well as evidence demonstrating that Plaintiff cannot reasonably obtain contrary evidence, such as Plaintiff’s response to specific requests for admission on that issue.

Defendant may not simply cite to 56 pages of discovery responses and suggest that if Defendant does not believe that evidence is included within those pages (or Defendant cannot find such evidence within those pages), it must also be undisputed that Plaintiff cannot reasonably obtain evidence to support its claims. The Court is neither required to, nor will it, scour through Defendant’s evidence in an effort to ascertain which portion of the discovery responses might demonstrate that Plaintiff cannot reasonably obtain evidence in support of each of the four separate propositions set forth in UMFs 30 and 31.

Thus, the Court concludes that UMFs 30 and 31 are improper and unsupported for the reasons stated above.

In sum, because Defendant has failed to meet its initial burden in addressing the necessary legal and factual issues for obtaining summary judgment and has also failed to satisfy its initial burden with respect the UMFs 15, 30 and 31, Defendant’s motion for summary judgment must be denied on each of these separate and independent grounds.

2. Triable Issues of Material Fact

Although the Court need not continue, it finds that Plaintiff has also raised a triable issue of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006108: ZOLNIKOV vs GIRON, et al. 07/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16D

material fact, at minimum, with respect to UMF 17 and 18.

UMF 17 asserts, “At all times, Bonney’s work was performed within the easement boundaries,” citing service invoices and jobsite photographs. (Separate Statement at p. 6:23-7:2.) Although Plaintiff failed to comply with California Rules of Court, rule 3.1350(f)(2)[2] in his response to Defendant’s separate statement, Plaintiff provides evidence that the sewer line encroaches 2.5 inches outside of the public right of way and into Plaintiff’s property. (See Pfaff Decl., Ex. A, CNA Engineering, Inc. Survey Report.) This is sufficient to raise a triable issue of fact with respect to whether Defendant’s work was performed within the easement at all times.

UMF 18 asserts, “While attempting to perform the work, Plaintiff began to harass Ms. Giron, asserting Bonney “had no right” to use the public utility easement, and that the easement did not exist.” In support of this UMF, Defendant provides Plaintiff’s discovery response to form interrogatory No. 17.1 in which he denies harassing Giron. Thus, based on Defendant’s own cited evidence, there appears to be a dispute of fact as to whether Plaintiff harassed Giron.

Once again, Defendant may not now assert that the triable issues raised by Plaintiff are somehow immaterial to the success of Defendant's motion. As explained earlier, Defendant has conceded the materiality of all facts it asserted in its separate statement. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; Insalaco v Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 521.)

The Court need not continue. Because Defendant failed to meet its initial burden and because Plaintiff has raised triable issues of material fact, Defendant’s motion for summary judgment is DENIED.

IV.

Disposition

Accordingly, Defendant’s motion for summary judgment is DENIED. Defendant’s alternative request for summary adjudication is also DENIED.

This minute order is effective immediately. Pursuant to California Rules of Court, rule 3.1312, Plaintiff shall prepare an appropriate order which conforms to Code of Civil Procedure section 437c, subd. (g).

[1] The Court notes that each issue for summary adjudication identified in the separate

statement relies on the same 31 UMFs. Thus, because Defendant’s fails to meet its initial burden and because Plaintiff raises triable issue of material fact as stated below, Defendant motion for summary adjudication also must be denied as to each issue for the same reasons that its motion for summary judgment is denied.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006108: ZOLNIKOV vs GIRON, et al. 07/23/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 16D

[2] Plaintiff’s response to the separate statement includes a number confusing formatting

errors. For example, although certain AMFs are numbered the same, they do not contain the same asserted facts. (See AMF 34 at p. 15:6-20 and AMF 34 at p. 21:8-28.) Additionally, Plaintiff failed to consecutively number his AMFs. (See Response at p. 25:18-26:6.) Nevertheless, the Court was able to locate the relevant evidence as it was sufficiently identified in Plaintiff’s opposition.