HAMMLER vs ALLISON, et al.

23CV006784: HAMMLER vs ALLISON, et al. 10/17/2024 Hearing on Motion for Summary Judgment in Department 54

Tentative Ruling

This matter was continued from October 9, 2024 to today's date pursuant to the Court's procedure in matters involving self-represented incarcerated litigants. The original tentative ruling is republished below.

The Litigation Coordinator shall make Plaintiff Allen Hammler available, by Zoom or telephonically, at 9:00 a.m. To appear on Zoom telephonically, call (833) 568- 8864 and enter the Zoom ID: 16146506749.

Incarcerated plaintiff in pro per Allen Hammler’s (“Plaintiff”) motion for summary judgment is DENIED.

Plaintiff filed his Complaint on July 14, 2023, using the Judicial Council form complaint for personal injury, property damage, and wrongful death. Plaintiff also attached to the form complaint a 37-page handwritten “Civil Complaint.” The Complaint alleges causes of action for negligence, intentional tort, assault, battery, slander, and libel. Plaintiff’s claims relate to use of force against Plaintiff by defendants.

Plaintiff’s motion seeks summary judgment based upon three material facts.

In evaluating a motion for summary judgment 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 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 unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden. A plaintiff moving for summary judgment meets his burden of showing that there is no defense to any cause of action if that party has proved each element of each cause of action entitling that party to judgment on that cause of action. (Code Civ. Proc. § 437c(p)(1).) The court must determine whether the moving party has met his or her burden of proof “by reliance on competent declarations, binding judicial admissions contained in the allegations of the [opposing party’s pleadings], responses to discovery, and the testimony of witnesses at noticed depositions. (Code Civ. Proc. § 437c, subd. (b); D’Amico v. Board of Examiners (1974) 11 Cal.3d 1, 20-21.)” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)

23CV006784: HAMMLER vs ALLISON, et al. 10/17/2024 Hearing on Motion for Summary Judgment in Department 54

If the plaintiff meets his burden, the burden shifts to the defendant to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the defendant cannot rely on the mere allegations or denial of its pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists....” (Code Civ. Proc. § 437c(p)(1).) A triable issue of material fact exists “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. [Fn. omitted.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

Plaintiff has failed to meet his initial burden for multiple reasons. First, Plaintiff seeks only summary judgment, but he has failed to address each cause of action alleged in his pleading. Plaintiff’s motion only addresses his first cause of action for assault and battery and third cause of action for negligence, but it does not address the second cause of action for slander and libel. As Plaintiff has not sought summary adjudication, the Court cannot summary adjudicate only those causes of action that Plaintiff addresses in his motion.

To further explain this rationale, a court may not grant summary adjudication when the only motion noticed for hearing is one for summary judgment. (Gonzales v. Superior Court (1987) 189 C.A.3d 1542; Maryland Cas. Co. v. Reeder (1990) 221 C.A.3d 961, 974, footnote 4). The notice of motion must state in writing the “grounds upon which it will be made.” (Code Civ. Proc., § 1010) Courts generally may consider only the grounds stated in the notice of motion and cannot grant different relief, or relief based on different grounds, from those specified in the notice of motion. (Luri v.

Greenwald (2003) 107 Cal.App.4th 1119, 1125.) As noted in Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (1986) §§ 10:21, 10:43, “If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion. . . .” (Homestead Savings v. Superior Court, (1986), 179 Cal.App.3d 494, 498.) There is a sound reason for this rule: “. . . the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues.

It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied.” (Gonzalez v. Sup. Ct. (General Motors) (1987) 189 Cal.App.3d 1542, 1546, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (1986) at § 10:44 [now 10:89].)

Second, Plaintiff seeks summary judgment based on three purported material facts, which he contends are supported by the allegations in his Complaint and video footage of an altercation. Allegations in a complaint do not constitute evidence upon which summary judgment can be granted. As noted above, the Court must determine whether Plaintiff has met his burden of proof “by reliance on competent declarations, binding

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006784: HAMMLER vs ALLISON, et al. 10/17/2024 Hearing on Motion for Summary Judgment in Department 54

judicial admissions contained in the allegations of the [opposing party’s pleadings], responses to discovery, and the testimony of witnesses at noticed depositions. [Citations.]” (Sangster, supra, 68 Cal.App.4th at p. 162.) Further, the alleged video footage has not been provided to the Court. Essentially, Plaintiff has not provided any admissible evidence in support of his motion.

Thus, the Court concludes Plaintiff has wholly failed to met his initial burden and the burden never shifted to Defendants to create a triable issue of material fact.

Plaintiff’s motion for summary judgment is DENIED.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, Rule 3.1312, or further notice is required.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

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.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006784: HAMMLER vs ALLISON, et al. 10/17/2024 Hearing on Motion for Summary Judgment in Department 54

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 be forward the form to the Court Reporter’s Office and an official reporter will be provided.