THI DIEU NGUYEN v. HDR TRANSPORT, INC.

The motion is supported by a separate statement of fact, a request for judicial notice of the

Court’s file, a declaration from attorney Elliot Solandt, the Complaint, police and autopsy reports,

a certificate of registration showing that DHR owned the vehicle, service records for the vehicle,

and portions of the transcript from the deposition of HDR’s owner and PMK, Ho Bui.

The motion is opposed by Nguyen on the grounds that triable issues of material fact exist.

The opposition is supported by an opposing separate statement of fact, a statement of additional

facts, a declaration from attorney Jamon Hicks, excerpts from the transcript from Bui’s deposition,

and the autopsy and police reports, Nguyne also submits an opposition to HDR’s request for

judicial notice,1 in addition to evidentiary objections.2

1 The request for judicial notice broadly relates to the Court’s entire file. While judicial notice of court records is proper under Evidence Code section 452, subdivision (d), the truth of matters asserted in such documents is not necessarily subject to judicial notice unless the document is an order, statement of decision, or judgment. (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014, as modified on denial of reh'g (Jan. 26, 2023).) It is unclear what specifically HDR relies upon in its motion, outside of the complaint, because the complaint is the only thing cited within the Court’s docket. Since the pleadings frame the relevant issues for purposes of summary judgment, the Court grants the request for judicial notice as it relates to the complaint.

2 The first and second objections to the Complaint and police report are overbroad and are overruled. Nguyen also relies upon the police report, so the foundational objection is arguably waived. Several of the objections are also apparently directed at the statement of fact, as opposed to the underlying evidence.

HDR has replied and submits a response to Nguyen’s additional facts.

The facts presented with the motion

The facts presented with the motion indicate Van Do was found deceased in his semi-truck

and he appeared to be in poor health the day prior, during his delivery at Trane Technologies in

Texas. (Fact No. 1.) That assertion is supported by reference to the Complaint. While assertions in

a complaint generally constitute judicial admissions, only the factual allegations are admitted by

the pleader. (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 451.)

The Complaint in this case merely outlines the existence of a report and what it conveyed.

In particular, Nguyen alleges a female employee of Trane Technologies, which received a load

from Van Do, contacted a Walmart associate at around 3:00 pm on July 9, 2022, and stated she

was worried about the driver of the truck (Van Do) in the Walmart parking lot because he looked

to be in poor health during the delivery the day prior. The female employee further stated she was

worried since the truck was still in the parking lot (and elsewhere the Complaint indicates that after

the delivery Van Do parked at the Walmart, i.e. the truck had been in the lot since the day prior).

Then, when police eventually arrived and entered the truck, Van Do was found deceased in the

sleeping compartment of the cab. (Compl. at ¶ 2.)

The Complaint does not clearly indicate whether Nguyen was adopting, as fact, what the

employee had reported. Thus, the Complaint can only be used to show that Van Do arrived with

the semi-truck at Trane Technologies on July 8, 2022; after the delivery Van Do parked at the

nearby Walmart; and the next day, at around 3:00 pm, the Trane Technology employee contacted

In any event, while the Complaint and certain assertions within it could serve as a judicial admission, not all allegations are stated as if the underlying facts are true (as explained below). Overall, the Court sustains Nguyen’s objection no.’s 3 and 4 (except as to the assertion that the truck was found running with the air condition on) on foundational and hearsay grounds; overrules objection no. 5; sustains objection no. 6 to the service records on foundational grounds; overrules objection no. 7; and notes objection no. 8 goes to whether the fact is supported by the evidence cited, as opposed to being a true evidentiary objection.

Walmart to report her concerns. The Complaint therefore arguably cannot be used to prove the

underlying truth of the report, regarding Van Do’s health, because it is not clear whether Nguyen

was intending to adopt that assertion as fact as opposed to giving context for how Van Do was

found.

HDR also contends that before the delivery Van Do had been driving for “several days,”

(Fact No. 12), but again the Complaint makes no such express assertion. While HDR also cites to

the Bui deposition, no pin cite is provided. In any event, Nguyen concedes that the truck had been

dispatched by HDR from California to Texas. (Plaintiff’s Additional Fact (PAF) No. 4.) The facts

presented with the motion also confirm that after the delivery the truck pulled into the Walmart

parking lot on July 8, 2022, at 12:30 pm, and Van Do was not observed leaving the vehicle. (Fact

No.’s 3-4.) The parties further agree that when law enforcement arrived the next day, the outside

temperature was at least 107 degrees Fahrenheit, and the weather conditions were open and

obvious. (Fact No.’s 5 and 16.)

HDR then indicates the truck had been sitting for an unknown period of time, up to a full

day, with the air conditioning on and the motor running. (Fact No. 6.) That assertion is supported

by reference to the police report, but its contents are largely hearsay. HDR also cites the Complaint,

but the pleading does not indicate the vehicle had been parked for an unknown period of time or

that it or the air conditioner was running the whole time. In any event, the facts referenced above

essentially establish the truck was parked at the Walmart on July 8, 2022, at 12:30 pm, and

apparently remained there until the police arrived the next day (after the report was made around

3:00 pm) and the police found the air conditioning on with the truck running. (Compl. at ¶ 2.)

There is no evidence establishing exactly how long the air conditioning or truck were running

though.

It is also undisputed that Van Do was found deceased. The cause of death was identified

by the medical examiner as “hyperthermia due to environment exposure (enclosed vehicle)” with

contributing factors identified as “atherosclerotic and hypertensive cardiovascular disease.” The

manner of death was identified as an “accident.” (Fact No.’s 7-8.)

As for the truck, the parties agree it was owned by HDR. (Fact No. 9.) While HDR also

contends the truck had been maintained up through June 21, 2022, the evidence cited are the

service records attached to the declaration of attorney Elliot Solandt. (Fact No. 10.) The declaration

does not indicate how Solandt would have personal knowledge regarding the authenticity of the

records. As a result, in the face of Nguyen’s objection on foundational grounds the records are not

admissible and cannot be used to show that HDR “maintained” the truck.

On the other hand, HDR separately contends Bui testified that he “inspected” the subject

vehicle before dispatching Van Do and that the vehicle, including the air conditioning, was in

working order. (Fact No. 11.) It appears, however, that by “inspection” Bui meant he turned it on

to ensure it was working. (Bui Dep. at pp. 63-64.) Bui did so about 2-3 days prior to the incident

and used the truck “driving back and forth.” (Bui Dep. at pp. 65-66.) It was during that time Bui

confirmed the air conditioning was working, though he conceded the system would only receive

maintenance if something was wrong, but since there were no problems there was “no fixing.”

(Bui Dep. at pp. 66-68; see also pp. 69-71.) There is also nothing suggesting Bui was particularly

qualified to inspect the air conditioner.

In the opposition, Nguyen also cites Bui’s testimony indicating it was the driver’s

responsibility to report any failures and to have the shop repair it if the driver could not fix it;

drivers did regular maintenance of the brakes and engines; drivers were responsible for ensuring

the truck received service; and that Bui had also testified the air conditioning was last checked

when he drove the vehicle for about a month and then after Van Do died. (Bui Dep. at pp 13-16.)

The parties otherwise agree the trip from California to Texas was one of Van Do’s first

ever trips operating HDR’s vehicle and that first assignment, as noted above, was completed on

July 8, 2022. (Fact No.’s 13-14.) HDR also contends that Van Do declined a return job from Texas

to California (Fact No. 15) and then argues he was not working for HDR at the time of the incident,

but no pin cite is provided for that assertion in the separate statement. It appears, based on the

highlighted testimony in the transcript submitted, that HDR relies upon testimony from Bui that

Van Do never picked up merchandise. (Bui Dep. at p. 98.) However, that testimony suggests

arrangements had been made to pick up merchandise, Van Do reported he had arrived and was

waiting to pick up the merchandise, but the shipper eventually called and inquired why Van Do

did not show. From around that point in time, Van Do stopped picking up his phone, i.e., the

evidence does not show that Van Do declined the job. (Ibid.)

HDR then claims that Van Do chose to sleep in his own vehicle as HDR did not require it.

(Fact No.’s 17-18.) While the evidence cited does not directly support the assertion made, Nguyen

does not dispute that Van Do slept in the sleeper berth. Nguyen adds, however, that it was

foreseeable that the sleeper berth would be used for the required off-duty rest and it was not merely

a personal choice, but was ordinary, intended, and foreseeable. (Response to Fact No. 17.)

HDR further indicates Van Do was in possession of its credit card to use in case of

emergencies (Fact No. 19) and that there is no evidence regarding why the air conditioning stopped

working (Fact No. 20). While the former is undisputed, the latter is only supported by reference to

the Complaint, which does address whether Nguyen has “evidence.” But the Complaint does

indicate HDR was negligent in the ownership, management, repair, service, maintenance,

operation, control, and entrustment of the truck. (Compl. at ¶ 10, 12, and 16.)

DISCUSSION

An Overview of the Law Applicable to Motions for Summary Judgment/Adjudication

Summary judgment is proper where there is no triable issue as to any material fact and the

movant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The analysis requires the trial court to engage in three steps:

First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant’s favor. [Citations.] The motion must stand self- sufficient and cannot succeed because the opposition is weak. [Citations.]

A party cannot succeed without disproving even those claims on which the opponent would have the burden of proof at trial. [Citations.] [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal.App.3d 1061, 1064-65.)

When the moving party is a plaintiff, the initial burden is met by a showing that there is no

defense to the action or rather by proving each element of the cause or causes of action. (See Code

Civ. Proc., § 437c, subd. (p)(1).) Likewise, defendants can meet their initial burden by showing

that a cause or causes of action have no merit because one or more elements of the claims “cannot

be established.” (See Code Civ. Proc., § 437c subd. (p)(2).) Once the movant has met the initial

burden, the burden then shifts to the opposing party to produce admissible evidence showing that

there is a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 849-851.) However, if the

movant does not satisfy the initial burden, the motion must be denied and it is unnecessary for the

court to consider the opposition. (Swanson v. Morongo Unif. Sch. Dist. (2014) 232 Cal.App.4th

954, 963.)

The party opposing an MSJ must provide proof showing a triable issue of fact; equivocal

evidence will not suffice. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial § 10:203

(“Weil & Brown”), citing Ahrens v. Sup. Ct. (Pac. Gas & Elec. Co. (1988) 197 Cal.App.3d 1134,

1152.) Declarations and evidence offered in opposition to a motion for summary judgment must

be liberally construed, while the moving party’s evidence must be construed strictly. The opposing

party cannot controvert the moving party’s declarations by evidence “based on speculation,

imagination, guess work, or mere possibilities.” (Weil & Brown, supra, § 10:203.1, citing Doe v.

Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) Opposing declarations, while liberally construed,

cannot contain inadmissible evidence, either hearsay or conclusions. (Overland Plumbing, Inc. v.

Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483.) Any evidentiary objections not made are

deemed waived. The Court, additionally, must consider reasonable inferences drawn from the

presented evidence by the parties. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th

at p. 843.)

The opposing party may not rely upon the allegations or denials in its pleadings, but must

“set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc.,

§ 437c, subd. (p)(2).) The opposing party’s failure to file counter-declarations or opposition does

not relieve the moving party of the above burden, i.e., it is still the moving party’s burden to prove

he is entitled to judgment. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-45; FSR Brokerage,

Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69, 73-75, fn. 4.)

The court’s sole function on a motion for summary judgment is issue finding, not issue

determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) The judge must determine

from the evidence submitted whether there is a triable issue as to any material fact. (Id. at p. 926.)

If there is a single such issue, the motion must be denied. (Joseph Schlitz Brewing Co. v. Downey

Distributor (1980) 109 Cal.App.3d 908, 914.)

A party may also move for summary adjudication as to one or more causes of action within

an action, one or more affirmative defenses, one or more claims of damages, or one or more issues

of duty. (Code Civ. Proc. §437(f).) A summary adjudication motion may be made by itself, or as

an alternative to a summary judgment motion, and is subject to the same rules and procedures as

a summary judgment motion. (Lomes v. Hartford Financial Service Group, Inc. (2001) 88

Cal.App.4th 127, 131.)

The Cause of Action for Wrongful Death

“The elements of the cause of action for wrongful death are the tort (negligence or other

wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by

the [decedent’s] heirs.” (Faiaipau v. THC-Orange County, LLC (2025) 117 Cal.App.5th 292, 304,

review denied (Mar. 11, 2026).) The elements of negligence are (1) the existence of a duty of care

owed by the defendant, (2) the defendant’s breach of that duty, and (3) damages proximately or

legally caused by the breach. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)

The duty of care and foreseeability

In this case, HDR appears to contend it did not owe Van Do a duty of care because he had

completed his delivery and declined to work another job. However, as noted above the evidence

cited does not support the proposition that Van Do declined another job. (Fact No. 15; Bui Dep. at

p. 98.)

Moreover, HDR fails to cite any authority suggesting its duty of care ceased merely

because Van Do declined to accept a load on the way back to California. HDR otherwise appears

to generally concede it owed Van Do a duty of care as an alleged agent or employee and since it

provided Van Do with the truck. The evidence also indicates that using the truck to rest was

foreseeable, in fact common, and that resting, regardless of location, was also mandatory after so

many hours on the road. (Bui Dep. at pp. 74-75.) It was also foreseeable that Texas would be hot

in July. (Bui Dep. at p. 85.)

Thus, it was foreseeable that providing a truck with defective air conditioning could lead

to heat related harm. Indeed, California has addressed heat-related illnesses to employees via

regulation, including addressing vehicles without operable air conditioning. (See Cal. Code Regs.,

tit. 8, § 3395 [addressing heat illness prevention in outdoor places of employment, including within

a vehicle and which also covers certain types of transportation or delivery industries]; Department

of Industrial Relations v. Occupational Safety & Health Appeals Bd. (2018) 26 Cal.App.5th 93,

108 [suggesting that a non-air conditioned bus could be considered an “outdoor” place of

employment for purposes of § 3395 if the bus failed to “significantly reduce the net effect of the

environment risk factors that exist immediately outside”].)

Even if the regulation is inapplicable to the facts in this case, the regulation still generally

supports the proposition that heat related injuries are foreseeable within vehicles without operable

air conditioning when it is hot. It is also notable that the exact harm and occurrence need not be

contemplated for a duty of care to arise, “the defendant may be liable if his conduct was “a

substantial factor” in bringing about the harm, though he neither foresaw nor should have foreseen

the extent of the harm or the manner in which it occurred.” (Collins v. Navistar, Inc. (2013) 214

Cal.App.4th 1486, 1503; Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 345 [it is “not

necessary that the exact means or type of injury be foreseeable; it is only necessary that the general

character or type of harm or injury be reasonably foreseeable”].)

Furthermore, since it was foreseeable that Van Do could sleep in the sleeper berth, it was

also foreseeable that he could do so while relying upon a working air conditioning. The fact that

the vehicle was found running with the air conditioning on also supports that proposition. Yet, the

motion fails to provide any authority or analysis explaining why HDR would not owe a duty of

care to ensure that the truck’s air conditioning was working properly despite its knowledge of the

surrounding facts.

There is also no scientific evidence presented suggesting that an adult dying from

hyperthermia in a vehicle in the summer is generally unforeseeable, whether because the adult

would likely wake up beforehand or otherwise. 3 In the same vein, HDR suggests Van Do “chose”

not to exit the vehicle, but there is no evidence he ever woke up to the extent he fell asleep. And

the fact that HDR provided Van Do with a credit card for emergencies is immaterial to the extent

he fell asleep before the air conditioner stopped working.

The open and obvious defense

As for HDR’s suggestion that the heat was “open and obvious,” to the extent the defense

is an affirmative one, it is also not clearly alleged in the answer. Otherwise, an open and obvious

hazard does not relieve a defendant of “all possible duty, or breach of duty, with respect to it ...

3 Proximate causation has two aspects, with the first being “but for,” that is an “act is a cause in fact if it is a necessary antecedent of an event.” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352–353.) “The second aspect of proximate cause “ focuses on public policy considerations. Because the purported [factual] causes of an event may be traced back to the dawn of humanity, the law has imposed additional ‘limitations on liability other than simple causality.’ [Citation.] ‘These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.’ ...

As Witkin puts it, “[t]he doctrine of proximate cause limits liability; i.e., in certain situations where the defendant’s conduct is an actual cause of the harm, the defendant will nevertheless be absolved because of the manner in which the injury occurred.... Rules of legal cause ... operate to relieve the defendant whose conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her legally responsible.” (Ibid.) The issue is generally a question of fact, but it can be decided as a matter of law from the allegations if the only reasonable conclusion is an absence of causation. (State Dept. of State Hospitals v.

Superior Court (2015) 61 Cal.4th 339, 352–353.)

The modern and controlling law on this subject is that ‘although the obviousness of a danger may

obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite

the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a

duty to remedy the danger, and the breach of that duty may in turn form the basis for liability....”

(Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.)

The motion in this case suggests that Van Do chose to park and stay in the truck in the heat,

as if he did so while the air conditioning was not working and therefore he should have known

about the dangers of doing so, but again no evidence is submitted to support that proposition. In

fact, at times HDR appears to concede the air conditioning may have stopped working after Van

Do parked. (Opening Brief at 5:13-15.)

To the extent HDR could have possibly argued Van Do undertook the danger that the air

conditioner could stop working while sleeping, it has not done so nor are any facts presented

suggesting Van Do had reason to suspect there would be a malfunction. Additionally, as presented,

the motion fails to show when the air conditioner stopped working, in relation to when the vehicle

was parked, in relation to when Van Do fell asleep (if at all), or otherwise. The motion also fails

to establish, among other things, if Van Do fell asleep or if he ever woke up.

HDR is currently the movant and therefore has the burden of affirmatively disproving an

element of the cause of action. Alternatively, HDR could have met its initial burden by showing

that Nguyen lacked evidence to support his claim and that he cannot reasonably obtain such

evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) It appears HDR attempted to do

so, at least in cursory fashion, by arguing there is no evidence as to why the truck’s air condition

stopped working (Fact No. 20), but as noted above the evidence cited is the Complaint and the

pleading does not indicate Nguyen lacks such evidence. There are also no discovery responses

from Nguyen produced with the motion showing he admitted to lacking evidence.

Causation and breach of duty

Finally, HDR argues that Nguyen cannot show causation, or perhaps breach of duty, since

the vehicle’s air conditioning was properly functioning at the time it was dispatched for the trip;

there is no evidence as to when, how, or why the air conditioning system failed; there is no

evidence that any alleged failure was the result of negligent maintenance, inspection, or any other

act or omission by HDR; and therefore it is pure speculation that Van Do’s death can be attributed

to an alleged failure by HDR. As noted above, however, HDR fails to produce evidence supporting

Nguyen’s purported lack of evidence.

As for HDR’s attempts to affirmatively disprove the claim by citing the working nature of

the air conditioning before the trip, the mere fact that the air conditioning was operable prior to the

trip does not, in and of itself, mean it was properly maintained. Furthermore, HDR’s assertion that

the truck was maintained up through June 21, 2022, is supported by inadmissible service records,

since defense counsel attempted to authenticate the documents without showing personal

knowledge as to their authenticity. (See Fact No. 10 and Nguyen’s objections.)

Otherwise, the motion makes a distinction between “maintenance” and “inspection” and

suggests that Bui also inspected the air condition. It is generally beyond the experience of the Court

as to whether a semi-truck’s air conditioning system, which provides air to the sleeper berth,

requires maintenance, how often, and what kind. Presumably some type of preventative

maintenance is required to keep the air conditioning from malfunctioning (and the motion has not

demonstrated otherwise) and no admissible evidence of maintenance was produced to support

HDR’s assertion of fact. Indeed, Bui essentially testified maintenance on the air conditioning was

only performed if something broke. (Bui Dep. at p. 67.) Thus, arguably an inspection alone was

insufficient, at least absent evidence showing no maintenance was required to keep it from

malfunctioning.

Furthermore, the reasonableness of Bui’s inspection would generally be a question of fact,

there is no clear evidence Bui was particularly qualified to conduct an adequate inspection of the

air conditioning unit, and it appears his idea of inspection was to merely “test it by like try[ing] to

us it. Like turn it on, something like that.” (Bui Dep. at p. 64.) Thus, the reasonableness of the

inspection is a triable question of fact.

CONCLUSION

Based on the foregoing, the Court rules as follows:

(1) Grants HDR’s request for judicial notice of the Complaint but denies the remainder of the

request for judicial notice of the entire docket and all the filings (it is not clear that HDR even

relies upon any such records or documents beyond the Complaint).

(2) Overrules Nguyen’s objection no.’s 1-2 as overbroad (also noting Nguyen relies upon the

police report as well and therefore appears to concede to its authenticity); sustains objection

no.’s 3 and 4 (except as to the assertion that the truck was found running with the air condition

on) on foundational and hearsay grounds; overrules objection no. 5; sustains objection no. 6 to

the service records on foundational grounds; overrules objection no. 7; and notes objection no.

8 goes to whether the fact is supported by the evidence cited, as opposed to being a true

evidentiary objection based on admissibility of the underlying evidence.

(3) Denies the motion in its entirety.

a. Much of the evidence cited does not support the propositions asserted or is

inadmissible, e.g., that the vehicle was properly maintained, that Nguyen lacks

evidence to support his claim, and that Van Do declined a return shipment. There is

also no evidence (scientific or otherwise) suggesting it would be unforeseeable for an

adult not to wake up while sleeping inside a hot vehicle or that air conditioning units

do not need preventative maintenance, as opposed to mere inspections or fixes once

they break. The motion also fails to establish the sequence of events related to the air

conditioning, what caused the air conditioner to malfunction, among other things. In

this regard, HDR failed to meet its initial burden.

b. The motion also fails to provide an adequate analysis on the duty of care issue and there

is otherwise evidence indicating it was foreseeable that Van Do would use the sleeper

to rest or sleep and that he would use the air conditioner while doing so because Texas

is hot in July. (Bui Dep. at pp. 74-75 and 85; Fact No. 16.) It is also “not necessary that

the exact means or type of injury be foreseeable; it is only necessary that the general

character or type of harm or injury be reasonably foreseeable.” (Collins v. Navistar,

Inc. (2013) 214 Cal.App.4th 1486, 1503; Wright v. City of Los Angeles (1990) 219

Cal.App.3d 318, 345.)

c. The open and obvious defense is not pled in the answer and HDR’s argument

presupposes facts not established, such as Van Do “choosing” to sleep in the truck

while the air conditioning was not working and “choosing” not to exit the vehicle.

There is also no evidence suggesting Van Do should have suspected the air would stop

working.

d. While Bui suggests he inspected the air conditioner, there is no evidence he was

particularly qualified to do so, and it appears his idea of inspection was merely turning

on the air conditioner to see if it was working. Bui also suggested there would only be

a need for maintenance if it broke. (Bui Dep. at pp. 64 and 67.) Furthermore, the

reasonableness of the inspection would be a triable issue of material fact.

Plaintiff’s counsel is ordered to provide notice.

IT IS SO ORDERED.

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