Helberg vs. Santa’s Garden, Inc.

The Court finds that Issue One and Issue Two sufficiently identify the defenses upon which Santa’s Garden seeks summary adjudication. Issue Three states, “Plaintiff cannot meet her burden of proof for negligence or product liability because she cannot prove the material elements of those causes of action. She cannot prove duty, breach, and causation because she cannot identify any abnormal or dangerous conditions. Defendant Santa’s Garden had no involvement in the design, manufacturing, production stream or marketing stream.”

Plaintiff correctly argues that this does not comply with the requirements of CRC, rule 3.1350(d) and (h), and does not separately identify each cause of action. Issue Three combines two causes of action and arguments with one set of material facts, such that on its face, Santa’s Garden fails to identify what purported material fact(s) applies to which cause of action. In this regard, the SSUMF is deficient on its face. The facts critical to each cause of action are not adequately identified for Plaintiff to rebut the arguments and facts applicable to the claims for negligence and product liability. “Where a remedy as drastic as summary judgment is involved, due process requires a party to be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. [Citation.]” (San Diego Watercrafts, Inc. v.

Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) The Court’s power to deny summary judgment on the basis of failure to comply with California Rules of Court, Rule 3.1350 is discretionary, not mandatory. [Citations.]” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Based on the foregoing, the Court DENIES the motion for summary adjudication as to Issue Three.

Merits 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.) The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.) “A summary judgment may be granted only where it is shown that the entire ‘action’ ‘has no merit.’ [Citation.]” (Hypertouch, Inc. v.

ValueClick, Inc. (2011) 192 Cal.App.4th 805, 834.) If the defendant fails to make the initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. (Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 100.)

Here, three of the four causes of action in the Complaint are asserted against Santa’s Garden: the first cause of action for premises liability, the second cause of action for negligence, and the fourth cause of action for negligent products liability. As to Issue One, Santa’s Garden contends that the it did not breach the duty to use reasonable care because Plaintiff assumed the risk. The second affirmative defense in Santa’s Garden’s Answer alleges that “Plaintiff had the express knowledge of the risks and hazards set forth in the complaint, as well as the magnitude of the risks and hazards, and thereafter knowingly and willing assumed those risks.” (ROA 10.)

As phrased, Issue One appears to seek adjudication of the affirmative defense of primary assumption of the risk as to the entire Complaint, and not as to any specific cause of action. However, Santa’s Garden does not argue or show that the doctrine of primary assumption of the risk applies to a claim of negligent products liability (fourth cause of action).

“The question whether the primary assumption of risk doctrine applies, and therefore whether a duty of care exists, is a legal question to be decided by the court. [Citation.]” (Whelihan v. Espinoza (2003) 110 Cal. App. 4th 1566, 1572.) “The doctrine ‘embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk.’ [Citation.]” (Ibid.) There are two species of assumption of risk: primary and secondary. (Avila v. Citrus Cmty. Coll.

Dist. (2006) 38 Cal. 4th 148, 161.) “Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. [Citation.]” (Ibid.) “Under this duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. [Citation.]” (Ibid.)

Primary assumption of the risk operates as a complete bar because of a legal determination that the defendant did not owe any duty to protect the plaintiff from the particular risk of harm involved in the claim. (Peart v. Ferro (2004) 119 Cal. App. 4th 60, 71.)

Here, the first cause of action for premises liability and second cause of action for negligence allege that Santa’s Garden had a duty to exercise reasonable care for the health and safety of persons lawfully on the subject property, such as Plaintiff. (Complaint, ¶¶ 9, 14.) The fourth cause of action for negligent products liability alleges a duty to properly manufacture, design, assemble, package, test, fabricate, analyze, inspect, install, merchandise, market, distribute, label, advertise, promote, sell, rent, lease, repair, retrofit, modify and provide adequate warnings concerning the inflatable slide. (Complaint, ¶ 26.)

Thus, the first two causes of action allege a different type of duty from the fourth cause of action. Santa’s Garden cites to Knight v. Jewett (1992) 3 Cal. 4th 296, for the proposition that the primary assumption of the risk doctrine operates as a complete bar to Plaintiff’s recovery, but Knight v. Jewett (1992) 3 Cal. 4th 296 involved claims of negligence, assault, and battery. (Knight v. Jewett (1992) 3 Cal. 4th 296, 301.) Santa’s Garden also cites to Nalwa v. Cedar Fair, L.P. (2012) 55 Cal. 4th 1148 and Shin v.

Ahn (2012) 42 Cal. 4th 482, but neither case involved a claim for negligent products liability. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal. 4th 1148, 1153 [two products liability counts dismissed leaving claims for common carrier liability, willful misconduct, and negligence]; Shin v. Ahn (2012) 42 Cal. 4th 482, 487 [negligence action].) As Santa’s Garden fails to establish that the primary assumption of the risk doctrine applies to the claim for negligent products liability, Santa’s Garden fails to meet its initial burden that the primary assumption of the risk doctrine is a defense to all three causes of action asserted against Santa’s Garden. “The motion must be denied if the movant fails to establish entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers. [Citation.]” (Schmidlin v.

City of Palo Alto (2007) 157 Cal.App.4th 728, 744 [finding that the notice of motion was not sufficient to tender, as a distinct subject for summary adjudication, plaintiff’s federal claim for excessive force where it prayed only for an adjudication of the entire seventh cause of action].) Notably, in reply, Santa’s Garden argues only that the primary assumption of the risk bars Plaintiff’s negligence and premise liability claims. (Reply 3:10- 11.)

To the extent that Santa’s Garden sought summary adjudication only as to Plaintiff’s claims for premises liability and/or negligence on the grounds that each is barred by the primary assumption of the risk doctrine, proper notice of this subissue was not given. In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, rule 3.1350 (b).) “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 [citing Code Civ. Proc. § 1010] (“Homestead”).) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead, supra, 179 Cal. App. 3d at p. 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.’ [Citation.]” (Gonzales v.

Superior Court (1987) 189 Cal.App.3d 1542, 1546.) A party does not waive any requirement of notice for a subissue that was not set forth in the notice by responding to the argument. (Homestead, supra, 179 Cal. App. 3d at p. 498.) Based on the foregoing, the Court DENIES the motion for summary adjudication as to Issue One.

As to Issue Two, Santa’s Garden contends that Plaintiff’s action is barred by the recreational use immunity codified in Civil Code section 846 because the pumpkin patch gives permission to others for recreational purpose. The twelfth affirmative defense in Santa’s Garden’s Answer alleges that “the action is barred by recreational use immunity at Civil Code section 846.” (ROA 10.)

Like with Issue One, Issue Two seeks adjudication as to all of Plaintiff’s claims against Santa’s Garden in this action, but fails establish that recreational use immunity set forth in Civil Code section 846 applies to a claim for negligent products liability. Civil Code section 846 provides that “[a]n owner of any estate any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.” (Civ.

Code § 846(a).) The fourth cause of action for negligent products liability alleges that Santa’s Garden failed to properly manufacture, design, assemble, package, test, fabricate, analyze, inspect, install, merchandise, market, distribute, label, advertise, promote, sell, rent, lease, repair, retrofit, modify and provide adequate warnings concerning shark slide. (Complaint, ¶¶ 26-28.) Thus, alleged liability is not premised upon Santa’s Garden ownership or any other interest in real property. Consistent with Issue One, as Santa’s Garden fails to establish that the recreational use immunity applies to the claim for negligent products liability, Santa’s Garden fails to meet its initial burden that the recreational use immunity bars all three causes of action asserted against Santa’s Garden.

Again, in reply, Santa’s Garden argues that recreational use immunity independently bars Plaintiff’s negligence and premises liability claims. (Reply, 9:5-7.) To the extent Santa’s Garden sought or seeks to adjudicate the applicability of the recreational use immunity to individual causes of action, proper notice was not given.

Based on the foregoing, the Court DENIES the motion for summary adjudication as to Issue Two. Lastly, Santa’s Garden argues in passing that Defendant, Great Air, Inc.’s cross-complaint related to the cause of action for strict products liability should be summarily adjudicated. (Motion, 24:14-16.) This is not raised as an issue in the notice of motion, and thus, not properly before the Court. In light of the Court’s ruling above, the Court declines to rule on Santa’s Garden objections as they are not material to the disposition of the motion. (Code Civ. Proc. § 437c(q).) Plaintiff to give notice

111 Tran vs. BridgeCreek Properties

25-01491199 Motion for Summary Judgment and/or Adjudication Defendants BridgeCreek Properties and Superior Protection Services, Inc. move for summary judgment against Plaintiff Suong Tran as to all causes of action alleged in the operative Complaint, including the first cause of action for battery, second cause of action for intentional infliction of emotional distress, third cause of action for elder abuse, fourth cause of action for negligence, and fifth cause of action for negligent hiring. Plaintiff failed to oppose the motion and the Court considers the non-opposition as a concession to the merits of the motion. (Herzberg v.

County of Plumas (2005) 133 Cal.App.4th 1, 20; DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566, as modified (Jan. 25, 2000) [“By failing to argue the contrary, plaintiffs concede this issue.”]; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [holding that “by failed to address” an issue, the issue is “impliedly concede[d].”]; and Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“Its failure to address the