McCormick v. Panacea Aesthetics & Wellness, Inc.

[“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment”].)

But even if the new facts in Plaintiff’s declaration do not contradict prior discovery responses, summary judgment based on an inspection of photographs of the alleged defect is proper only where the reviewing court concludes that reasonable minds cannot differ regarding the depiction of the alleged defect and the surrounding environs. (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at 15.)

The photographs produced by Plaintiff show there are no broken pieces or jagged edges on or near the utility box, only that there is a height differential of 1 1⁄4 inches between the two lids covering the utility box. This is no different than a height differential of two slabs of concrete on a sidewalk. The fact there is a metal-on-concrete transition appears to be a distinction without a difference. Without no aggravating factors as can be seen in the photos, the alleged defect is trivial as a matter of law. (See e.g., Beck v.

City of Palo Alto (1957) 150 Cal.App.2d 39 [holding that defect in sidewalk caused by one slab of concrete being pushed higher than contiguous slab with a difference in elevation up to one- and seven-eighths- inch, without any aggravating factors, is trivial as a matter of law].) Plaintiff failed to meet her burden showing a triable issue of fact on the trivial defect defense. The motion for summary judgment is therefore GRANTED.

Counsel for Defendant shall give notice of this ruling. 3 Dotts v. O/C Hyundai Motor America 4 McCormick v. The unopposed motion to be relieved as counsel of record for Panacea defendant Panacea Aesthetics & Wellness, Inc. filed by Kerri N. Aesthetics & Kramer, Esq. of Kring & Associates, APC is GRANTED. Wellness, Inc. Moving counsel has complied with the procedural requirements of C.R.C. 3.1362. The court finds good cause to grant the relief requested on the merits. The motion is thus GRANTED.

The order granting relief is effective upon filing of a proof of service of the signed order on the client.

A corporation must be represented in court by an attorney. (Gutierrez v. G & M Oil Co., Inc. (2010) 184 Cal.App.4th 551, 564.) As such, in order to proceed with this matter, defendant Panacea Aesthetics & Wellness, Inc. is ordered to obtain new counsel within a reasonable time. (CLD Constr., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1150