EDWIN A. LICHWA vs. HAROLD E. DURBIN; ET AL.

Defendants their assertions that they cannot complete discovery if this motion for trial preference were to be granted.

EDWIN A. LICHWA vs. HAROLD E. DURBIN; ET AL. Case No. FCS058762

DURBIN’s Motion for Summary Judgment

Defendant HAROLD EDWIN DURBIN (“DURBIN”) moves for summary judgment against Plaintiff EDWIN ALPHONSE LICHWA’s (“EDWIN”) complaint alleging negligence. EDWIN alleges, as relevant, that DURBIN’s negligence caused the death of EDWIN’s son NOAH ANTHONY LICHWA (“NOAH”) in an all-terrain vehicle incident.

The court has not received opposition to the motion for summary judgment.

Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (Code Civ. Proc., § 437c, subd. (o)(1).) A summary judgment motion is properly granted where the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not show facts sufficient to present a triable issue of fact. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion is not to be granted where any triable issue of material fact exists. (Ibid.)

The affidavits of the moving party are strictly construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (Ibid.) Reasonable inferences from the evidence must be drawn in the light most favorable to the opposing party. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.)

Affidavits, declarations, admissions, answers to interrogatories, depositions, and matters judicially noticed may all support a motion for summary judgment, provided they contain admissible evidence. (Code Civ. Proc., §§ 437c, subds. (b)(1), (d).) Allegations in a party’s own pleadings may not satisfy deficiencies in evidence. (Code Civ. Proc., § 437c, subd. (p).) Allegations in an opposing party’s pleadings may be considered evidence, however. (Parker, supra, 3 Cal.3d at p. 181.)

If the party opposite a motion for summary judgment fails to file a separate statement of undisputed material facts, the court has discretion to grant the motion. (Code Civ. Proc., § 437c, subd. (b)(3).) However, even where a party fails to file any opposition to a motion for summary judgment, the court may only grant the motion if the moving party has met its burden of proof. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.) A defendant’s summary judgment motion in particular meets its burden of showing there is no merit to the cause(s) of action if the defendant shows that any element of the cause(s) of action cannot be proven or that there is a complete defense. (Code Civ. Proc., §437c, subd. (p)(2).)

Negligence. The elements of a negligence claim are duty, breach, and causation of damages. (Moses v. Roger-McKeever (2023) 91 Cal.App.5th 172, 178-179.) DURBIN’s undisputed facts, based on EDWIN’s deemed admissions, establish that no breach of any duty of care on his part caused EDWIN or NOAH harm. (DURBIN’s Undisputed Material Facts #5-14.) EDWIN raises no triable issue of material fact in response.

Conclusion. DURBIN’s motion for summary judgment is granted.

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