Motion for Summary Judgment
24CV-03479 Irene Delema vs City of Merced, et al.
Motion for Summary Judgment
Defendants’ motion for summary judgment is DENIED.
Plaintiff’s objections to Merced Apartments LLC’s evidence are SUSTAINED on the basis that the statements objected to in the declaration of Garrison lack foundation. The declaration does not show affirmatively that the declarant is competent to testify to the matters stated in her declaration. (Code. Civ. Prod. § 437c, subd. (d).)
“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, as modified (July 11, 2001).)
“A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, as modified (July 11, 2001).)
Defendant does not make a prima facie case therefore the burden does not shift to Plaintiff show there is a triable issue of material fact.
Defendant has failed to meet their burden of production as to undisputed material facts (“UMFs) 8, 9, 10, and 11. As the objections to the declaration of Garrison have been sustained, there is no evidence provided by Defendant that the court may consider that supports their UMFs 8, 9, 10, and 11. (See Code. Civ. Prod. § 437c, subds. (b)(1), (c).)
These facts are material as they go to ownership, possession, or control over the subject sidewalk.
“[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations omitted] because [of the possessor's] supervisory control over the activities conducted upon, and the condition of, the land.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157–1158
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These elements have not been negated by Defendant’s motion and therefore remain triable issues of material fact.
As the motion fails regarding ordinary premises liability, and there was no alternative motion for summary adjudication, the court does not reach Defendant’s motion regarding Plaintiff’s alternative premises liability theory based on Streets and Highways Code section 5610.
Accordingly, as Defendant does not make a prima facie case the motion for summary judgment is DENIED.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
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