Preview
1
2 A PROFESSIONAL CORPORATION
William E. Camy, SBN 291397
3 Alison J. Southard, SBN 335716
2180 Harvard Street, Suite 500
4 Sacramento, CA 95815
5 TEL: 916.929.1481
FAX: 916.927.3706
6 EMAIL: wcamy@porterscott.com
asouthard@porterscott.com
7
Attorneys for Defendant/Cross-Complainant, WASCO RECREATION AND PARK DISTRICT
8
Exempt from filing fee pursuant to Government Code section 6103
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF KERN
11
12
13 TYNA POWELL, Case No.: BCV-22-100328
14 Plaintiff, CROSS-COMPLAINANT WASCO
RECREATION AND PARK DISTRICT’S
15 vs. OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY
16 WASCO RECREATION AND PARK SE’S EVIDENCE IN SUPPORT OF
DISTRICT, CITY OF WASCO and DOES 1 OPPOSITION TO MOTION FOR SUMMARY
17 through 50, inclusive, ADJUDICATION AGAINST CROSS-
DEFENDANTS WASCO TIGER SHARKS SWIM
18 Defendants. CLUB AND HDI GLOBAL SPECIALTY SE
19 Date: August 15, 2023
Time: 8:30
20 Dept.: H
21
/ Complaint filed: February 10, 2022
22
23
Pursuant to section 437c of the Code of Civil Procedure and Rule 3.1354 of the California Rules of
24 Court, Cross-Complainant WASCO RECREATION AND PARK DISTRICT hereby submits the following
25 Objections to the Evidence submitted by WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL
26 SPECIALTY SE in Opposition to the Motion for Summary Adjudication.
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28 1
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Objection No. 1
2 Evidence Objected To: “Q: Is it typical for a guest to have to walk through the grassy area from
3 the park to get to one facility to another facility? A: Yes. MR. CAMY [counsel for District]: Incomplete
4 hypothetical. Calls for speculation. BY MR. MORADIFAR: Q. Is it typical for a guest to use a walkway to
5 get from one facility to another facility? MR. CAMY: Same objections. MR. FITZ-SIMMONS: Lacks
6 foundation. BY MR. MORADIFAR: You can answer, Ms. Serna. A: Again, it's where they park.” (Exhibit
7 E to the Moradifar Decl., Excerpts from Transcript of Deposition of Maria Christena Serna (“Serna Depo.”),
8 35:3-16.)
9 Grounds for Objection to No. 1: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues
10 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) Speculation. (Cal. Evid. Code § 702.)
11 Lacks Foundation. (Cal. Evid. Code § 403.) Answer posed in response to incomplete hypothetical.
12 The evidence is immaterial to the outcome of the Motion, as the defense and indemnity agreement
13 was not limited to injuries occurring in the pool facility or in areas outside WTSC’s control. (See Ex. B. to
14 the IOE, FUA.) (See Cal. Rules of Court, Rule 3.1350(a)(2) [““Material facts” are facts that relate to the
15 cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion
16 and that could make a difference in the disposition of the motion.”].)
17 Further, the evidence cited is inadmissible, as Ms. Serna provided the testimony in response to
18 questions which posed incomplete hypotheticals and called for speculation. Moreover, the evidence is
19 inadmissible because it is immaterial to the issues of defense and indemnity posed by the Motion. Further,
20 the evidence cited does not support the fact as phrased in Fact 4 (“In order to navigate around Barker Park,
21 visitors either use maintained walkways or walk through the grassy areas of the park to travel from one
22 facility to the next.” Ms. Serna testified it is “typical” that guests “walk through the grassy area from the
23 park to” walk among facilities at the park, and that whether a guest uses a paved walkway depends on
24 “where they park.”
25
26 SUSTAINED ________ OVERRULED _______
27
28 2
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Objection No. 2:
2 Evidence Objected To: “And is anyone in charge of maintaining any walkways around the
3 playground? A: The maintenance department. Q: And what about any grassy area around the playground?
4 Is anyone responsible for maintaining the grass around the playground? MR. CAMY: Vague. THE
5 WITNESS:· The maintenance department.” (Serna Depo., 24:22-25:4.)
6 Grounds for Objection to No. 2: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues
7 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) Vague. See Objection Nos. 1, 6 above.
8 Further, the testimony was provided in response to a vague question. It also calls for a legal conclusion. It
9 is well-established that evidentiary facts, rather than mere conclusions of law or fact, are required to
10 successfully bring or oppose a motion for summary judgment or adjudication. (See Snider v. Snider (1962)
11 200 CA2d 741, 748-49, 751 [plaintiff’s affidavit submitted in opposition to motion for summary judgment
12 insufficient to create a triable issue of fact where the affidavit merely contained “a series of conclusions
13 of law and fact”]; Sesma v. Cueto (1982) 129 Cal.App.3d 108, 113 [doctor’s conclusory statement that
14 fetus was a stillborn was a legal conclusion unsupported by evidence and insufficient to support motion
15 for summary judgment]; see also Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 772-773
16 [conclusory statements in declaration afforded no weight].)
17 Here, the deponent was asked who was “responsible” for maintaining the grass around the
18 playground, which called for a legal conclusion as to the issue of duty. (See Vasilenko v. Grace Fam.
19 Church (2017) 3 Cal.5th 1077, 1083 [“The existence of a duty is a question of law.”]; see also Cabral v.
20 Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.) Mere legal conclusions are insufficient to successfully
21 oppose a summary judgment motion. (See Snider v. Snider (1962) 200 Cal.App.2d 741, 748-49, 751.)
22 Moreover, whether the District performs maintenance at the subject location is immaterial to the
23 motion. Plaintiff alleges WTSC is responsible for control and maintenance of the subject location, and her
24 allegations are accepted as true for purposes of the tender of defense. Also, just because the District
25 performs maintenance at the subject location does not mean that there are not dual responsibilities for
26 maintenance or remedying / warning of dangerous conditions between the District and the WTSC.
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28 3
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Therefore, Ms. Serna’s testimony that the District maintained the area is of no consequence to the Motion.
2 Additionally, the terms of the FUA provide that WTSC must defend, indemnify, and hold the District
3 harmless even for injuries caused by a condition of property controlled by the District.
4 Further, the evidence does not support the purported fact as phrased in WTSC’s Fact 6. (“The
5 maintenance workers are also responsible for maintaining the sprinklers, walkways and grassy areas
6 around the facilities, including, but not limited to, the inspection and maintenance of holes on the grassy
7 areas within Barker Park.”)
8
9 SUSTAINED ________ OVERRULED _______
10 Objection No. 3
11 Evidence Objected To: “Q: And who is in charge of maintaining this walkway? A: The
12 maintenance department. Q: And what about the grassy area surrounding the pool? Who was in charge -- is
13 anyone in charge of maintaining the grass around the pool? A: The maintenance department.” (Serna Depo.,
14 27:17-23.)
15 Grounds for Objection to No. 3: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues
16 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection Nos. 1, 2 above. Further,
17 the evidence does not support the purported fact as phrased in WTSC’s Fact 6. (“The maintenance workers
18 are also responsible for maintaining the sprinklers, walkways and grassy areas around the facilities,
19 including, but not limited to, the inspection and maintenance of holes on the grassy areas within Barker
20 Park.”)
21
22 SUSTAINED ________ OVERRULED _________
23 Objection No. 4
24 Evidence Objected To: “Q: So if a facility is rented out, in other words, you don't know if they
25 would be responsible for filling in a divot like this? MR. CAMY:· Same objections. You can answer if you
26 know. THE WITNESS: The renter would not be responsible for filling the hole. BY MR. MORADIFAR:
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28 4
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Would the renter be responsible for inspecting the grass at Barker Park for a divot like this? MR. CAMY:
2 Same objections. Calls for a legal conclusion. Calls for speculation. If you know, you can answer. THE
3 WITNESS: The renter would not be responsible for that. BY MR. MORADIFAR: Would a renter at Barker
4 Park be responsible for inspecting walkways at Barker Park? MR. CAMY: Same objections. THE
5 WITNESS: Not necessarily looking for anything, but reporting is something that’s seen. BY MR.
6 MORADIFAR: So, in other words, a renter would not be responsible for maintaining it or reporting it if
7 seen? MR. CAMY: Same objections. THE WITNESS: They would not be responsible for it, but to report
8 it would be crucial if they see damage. (Serna Depo., 44:3-45:7, emphasis added.)
9 Grounds for Objection to No. 4: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues
10 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection Nos. 1-3 above. Lacks
11 Foundation. (Cal. Evid. Code § 403.) Calls for a Legal Conclusion. See No. 2-3 above. Speculation. (Cal.
12 Evid. Code § 702.) Outside the scope of Ms. Serna’s PMK Deposition.
13 The cited testimony is inadmissible because it was provided in response to multiple questions
14 which called for legal conclusions, lacked foundation, called for speculation, and are outside of the scope
15 of the deponent’s testimony as a Personal Most Knowledgeable (“PMK”) witness. (See Declaration of
16 William E. Camy, ¶ 5; Ex. 1 to Camy Decl., Excerpts from Serna Depo., 43:17-25 [objections immediately
17 preceding the cited questions]: “Q: If a facility is rented out, would the renter of the facility be in charge
18 of maintaining a divot like this at Barker Park? MR. CAMY: Lacks foundation. Calls for a legal
19 conclusion. Lacks foundation. Calls for speculation. It's outside the scope of the PMK deposition
20 testimony. If you know the answer to the question, you can answer,” emphasis added.)
21 Irrespective of Ms. Serna’s testimony, it is well settled that as a user of property, WTSC had a duty
22 to inspect and act reasonably, whether that was warning its members/guests of conditions or notifying the
23 District of a potential problem. “‘[P]roperty owners are liable for injuries on land they own, possess, or’
24 But . . . the phrase ‘own, possess, or control’ is stated in the alternative. A defendant need not own, possess
25 and control property in order to be held liable; control alone is sufficient.” (Emphasis Added) (Alcaraz
26 v. Vece (1997) 14 Cal.4th 1149, 1162, internal citations omitted.) “To comply with this duty, a person who
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28 5
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 controls property must ‘ “ ‘ “inspect [the premises] or take other proper means to ascertain their condition”
2 ’ ” ’ and, if a dangerous condition exists that would have been discovered by the exercise of reasonable
3 care, has a duty to give adequate warning of or remedy it.” (Staats v. Vintner’s Golf Club, LLC (2018) 25
4 Cal.App.5th 826, 833.) Thus, as Plaintiff’s Complaint alleges, as a renter of the property, WTSC has a
5 duty to inspect the property and remedy / warn of potential dangerous conditions.
6 Further, this evidence is provided to support WTSC’s purported disputed to the District’s material
7 fact that “Plaintiff alleges the location she fell “was negligently and carelessly installed, owned, maintained,
8 repaired, managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement
9 of Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF
10 No. 25 and must be excluded.
11 Moreover, the evidence cited does not support the purported fact as phrased in WTSC 7 (“The
12 District is responsible for maintaining the walkways and grassy areas of Barker Park, even if a facility is
13 rented out.”)
14
15 SUSTAINED ________ OVERRULED _______
16 Objection No. 5
17 Evidence Objected To: “Q: To be clear, as of the date of that incident, June 19, 2021, was the grass
18 at Barker Park maintained by the maintenance department for Wasco Recreation & Park District? A: That
19 is correct. at Barker Park maintained by the maintenance department of Wasco Recreation & Park District?
20 A: Yes. Q: As of June 19, 2021, was the sprinkler system at Barker Park repaired by the maintenance
21 department of Wasco Recreation & Park District? A: Yes.” (Serna Depo., 48:25-49:13.)
22 Grounds for Objection to No. 5: Relevance. (Cal. Evid. Code § 350.) Vague. (Cal. Evid. Code §
23 350.) Immaterial to the issues raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See
24 Objection No. 1-4 above. Moreover, the evidence is submitted to cite an improper legal conclusion, and not
25 a material fact. (See WTSC Fact 18, “As of June 19, 2021, it was the District’s duty to maintain the grass
26
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28 6
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 and sprinkler systems at Barker Park, including the repair and maintenance of any holes or divots on the
2 green space,” emphasis added.)
3 Further, this evidence is provided to support WTSC’s purported disputed to the District’s material
4 fact that “Plaintiff alleges the location she fell “was negligently and carelessly installed, owned, maintained,
5 repaired, managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement
6 of Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF
7 No. 25 and must be excluded.
8
9 SUSTAINED ________ OVERRULED _______
10
11 Objection No. 6
12 Evidence Objected To: “Q: From your understanding, as of June 19, 2021, if a hole existed in the
13 grass area at Barker Park, would it be the responsibility of your maintenance workers from the Wasco
14 Recreation & Park District to repair? MR. CAMY: Same objections. BY MR. KELLAR: Q: You can
15 answer. A: Yes. (Serna Depo., 49:23-50:6, emphasis added.)
16 Grounds for Objection to No. 6: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues
17 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection Nos. 1-5 above. Lacks
18 Foundation. (Cal. Evid. Code § 403.) Calls for a Legal Conclusion. See No. 9 above. Speculation. (Cal.
19 Evid. Code § 702.) Vague.
20 The cited testimony is inadmissible because it was provided in response to a question which called
21 for legal conclusions, lacked foundation, and was vague. (See Declaration of William E. Camy, ¶ 5; Ex. 1
22 to Camy Decl., Excerpts from Serna Depo., 49:14-22 [objections immediately preceding the cited
23 questions]: “Q: And if any hole existed in the grass area of ·Barker Park as of June 19, 2021, which was in
24 need of ·repair, would it be the responsibility of the maintenance department of the Wasco Recreation &
25 Park District to perform such repair? MR. CAMY: Vague. Lacks foundation. Calls for a legal conclusion.
26
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28 7
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 BY MR. KELLAR: Q: Let me rephrase the question.” (emphasis added) Further, the evidence is submitted
2 for the improper purpose of supporting a legal conclusion, rather than a material fact. (See WTSC Fact 18,
3 “As of June 19, 2021, it was the District’s duty to maintain the grass and sprinkler systems at Barker Park,
4 including the repair and maintenance of any holes or divots on the green space.”)
5 Further, this evidence is provided to support WTSC’s purported disputed to the District’s material
6 fact that “Plaintiff alleges the location she fell “was negligently and carelessly installed, owned, maintained,
7 repaired, managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement
8 of Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF
9 No. 25 and must be excluded.
10
11 SUSTAINED ________ OVERRULED _______
12
13 Objection No. 7
14 Evidence Objected To: “Q: And was that area that was cautioned off that you observed on Monday,
15 June 21, 2021, an area of green space that was typically maintained by the maintenance department of the
16 Wasco Recreation & Park District? MR. CAMY: Vague. THE WITNESS: The grass area’s maintained by
17 the maintenance department. BY MR. KELLAR: Of Wasco Recreation & Park District; correct? A: That is
18 correct.” (Serna Depo., 77:22-78:7.)
19 Grounds for Objection to No. 7: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues
20 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection No. 1-6 above. Vague.
21 This testimony was provided in response to a vague question. Further, this evidence is provided to support
22 WTSC’s purported disputed to the District’s material fact that “Plaintiff alleges the location she fell “was
23 negligently and carelessly installed, owned, maintained, repaired, managed, constructed, controlled,
24 inspected by Defendants…” (See District’s Separate Statement of Undisputed Material Facts, UMF No. 25.)
25 The cited testimony does not contradict the District’s UMF No. 25 and must be excluded.
26
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28 8
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 SUSTAINED ________ OVERRULED _______
2
3 Objection No. 8
4 Evidence Objected To: “Q: My question is this: Was the place that was cautioned off, that area of
5 the green space of Barker Park, part of the area that was generally maintained by the maintenance
6 department of Wasco Recreation & Park District as of June 19, 2021? A: Yes.” (Serna Depo., 79:2-7.)
7 Grounds for Objection to No. 8: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues
8 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection No. 1-7 above. Further,
9 this evidence is provided to support WTSC’s purported disputed to the District’s material fact that “Plaintiff
10 alleges the location she fell “was negligently and carelessly installed, owned, maintained, repaired,
11 managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement of
12 Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF No.
13 25 and must be excluded.
14
15 SUSTAINED ________ OVERRULED _______
16
17 Objection No. 9
18 Evidence Objected To:
19 “8. To the best of my knowledge, the FUA only encompassed the lease of the Wasco Pool facility,
20 in addition to shelters on swim day meets.” (Castillo Decl., ¶ 8.)
21 Grounds for Objection to No. 9: Relevance, Immaterial. See Objection 1-8 above. Violation of
22 the Parol Evidence Rule. Legal Conclusion. Secondary Evidence Rule. (Cal. Evid. Code § 1521.)
23 These paragraphs consist of Mr. Castillo’s apparent interpretation of the FUA, as well as various
24 recitations of provisions of the FUA. This is inadmissible parol evidence, as the language of the agreement
25 is clear and unambiguous. (See Ex. B to the IOE, FUA.) Indeed, apart from a few select paragraphs, Mr.
26
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28 9
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Castillo’s Declaration merely recites the FUA provisions, which are equally available in the FUA itself,
2 which is already in evidence.
3 “Where contract language is clear and explicit and does not lead to an absurd result, [the court]
4 ascertain[s] [the parties’] intent from the written provisions and go[es] no further.” Crosby Est. at Rancho
5 Santa Fe Master Ass'n v. Ironshore Specialty Ins. Co., 498 F. Supp. 3d 1242, 1252 (S.D. Cal. 2020); see
6 also Bank of the W. v. Superior Court, (1992) 2 Cal.4th 1254, 1264 (1992) (if a policy's language is “clear
7 and explicit, it governs”).
8 Moreover, the FUA expressly provides that “the Wasco Tiger Sharks Swim Club shall indemnify,
9 defend, and hold harmless Wasco Recreation and Park District, its officers, employees, and agents from any
10 and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to
11 any person or persons or damage to property arising at any time out of or in any way related to the
12 Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco
13 Recreation and Park District, unless solely caused by the gross negligence or willful misconduct of Wasco
14 Recreation and Park District, its officers employees, or agents.” (Ex. B to the IOE, FUA, emphasis added.)
15 As such, Mr. Castillo’s apparent interpretation that WTSC merely rented the pool facility and did not
16 maintain or control common areas is immaterial to the issues raised in this Motion. See Objection 1 above,
17 as the indemnity provision applies in either event.
18 This purported fact is a legal conclusion, rather than a fact. As such, it is insufficient to successfully
19 oppose the District’s Motion. See Snider v. Snider (1962) 200 Cal.App.2d 741, 748-49, 751; Sesma v. Cueto
20 (1982) 129 Cal.App.3d 108, 113; see also Crosby Est. at Rancho Santa Fe Master Ass'n v. Ironshore
21 Specialty Ins. Co. (S.D. Cal. 2020) 498 F.Supp.3d 1242, 1252 [“Under California law, “interpretation of an
22 insurance policy is a question of law.”]; Waller v. Truck Ins. Exch., Inc. (1995) 11 Cal.4th 1, 18.)
23 Additionally, the testimony lacks foundation, as there is no foundation Mr. Castillo’s assertion that
24 the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755
25 [declarations made in support of and in opposition to motions for summary judgment must show declarant's
26
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28 10
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 personal knowledge and competency to testify, must state facts and not conclusions, and must not include
2 hearsay or opinion].)
3
4 SUSTAINED ________ OVERRULED _______
5 Objection No. 10
6 Evidence Objected To:
7 “9. Pursuant to the FUA, WTSC agreed to "inspect, maintain, and repair the pool deck, guard room,
8 and restrooms for trash and personal items left on decks or at the pool." WTSC also agreed to "lock and
9 unlock restrooms, buildings, and gates" within the pool facility. (See, Exhibit A, page 1, bullet points 8-9).
10 (Castillo Decl., ¶ 9.)
11 Grounds for Objection to No. 10: Relevance, Immaterial. See Objection 1-8 above. Violation of
12 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. Additionally, the testimony lacks
13 foundation, as there is no foundation Mr. Castillo’s assertion that the FUA only contemplated rental of the
14 pool. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755 [declarations made in support of and in
15 opposition to motions for summary judgment must show declarant's personal knowledge and competency
16 to testify, must state facts and not conclusions, and must not include hearsay or opinion].)
17
18 SUSTAINED ________ OVERRULED _______
19
20 Objection No. 11
21 Evidence Objected To:
22 “10. Pursuant to the FUA, the District agreed to maintain the pool to the degree that swimming can
23 be safely conducted at all times. (See, Exhibit A, page 1, bullet points 7).”
24 (Castillo Decl., ¶ 10.)
25 Grounds for Objection to No. 11: Relevance, Immaterial. See Objections 1-8 above. Violation of
26 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above.
27
28 11
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1
2 SUSTAINED ________ OVERRULED _______
3
4 Objection No. 12
5 Evidence Objected To:
6 “11. Pursuant to the FUA, WTSC was only required "to provide a list of duties to be performed by
7 District employee." (See, Exhibit A, page 2, bullet point 1).” (Castillo Decl., ¶ 11.)
8 Grounds for Objection to No. 12: Relevance, Immaterial. See Objection 1-8 above. Violation of
9 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above.
10
11 SUSTAINED ________ OVERRULED _______
12
13 Objection No. 13
14 Evidence Objected To:
15 “12. Pursuant to the FUA, the District provided WTSC with work orders in order to notify the
16 District of any repairs to the pool area.” (Castillo Decl., ¶ 12.)
17 Grounds for Objection to No. 13: Relevance, Immaterial. See Objection 1-8 above. Violation of
18 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above.
19
20 SUSTAINED ________ OVERRULED _______
21
22 Objection No. 14
23 Evidence Objected To:
24 “13. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area
25 landscaping in grassy areas within Barker Park.” (Castillo Decl., ¶ 13.)
26
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28 12
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Grounds for Objection to No. 14: Relevance, Immaterial. See Objection 1-8 above. Violation of
2 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above.
3 Objection No. 15
4 Evidence Objected To:
5 “14. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area
6 landscaping in grassy areas within Barker Park.” (Castillo Decl., ¶ 14.)
7 Grounds for Objection to No. 15: Relevance, Immaterial. See Objection 1-8 above. Violation of
8 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above.
9 SUSTAINED ________ OVERRULED _______
10
11 Objection No. 16
12 Evidence Objected To:
13 “15. Nothing in the FUA required WTSC to maintain, inspect, or repair the sprinkler systems within
14 Barker Park.” (Castillo Decl., ¶ 15.)
15 Grounds for Objection to No. 16: Relevance, Immaterial. See Objection 1-8 above. Violation of
16 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above.
17 SUSTAINED ________ OVERRULED _______
18
19 Objection No. 17
20 Evidence Objected To:
21 “16. Nothing in the FUA required WTSC to maintain, inspect, or repair any landscaping deficiencies,
22 including any holes or divots, within the grassy areas of Barker Park.” (Castillo Decl., ¶ 16.)
23 Grounds for Objection to No. 17: Relevance, Immaterial. See Objection 1-8 above. Violation of
24 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above.
25 SUSTAINED ________ OVERRULED _______
26
27
28 13
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Objection No. 18
2 Evidence Objected To:
3 “17. During the operative period of the FUA, WTSC never maintained, inspected, or repaired the
4 common area landscaping in grassy areas within Barker Park.” (Castillo Decl., ¶ 17.)
5 Grounds for Objection to No. 18: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to
6 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation
7 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010)
8 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment
9 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions,
10 and must not include hearsay or opinion].)
11
12 SUSTAINED ________ OVERRULED _______
13 Objection No. 19
14 Evidence Objected To:
15 “18. During the operative period of the FUA, WTSC never maintained, inspected, or repaired the
16 common area walkways within Barker Park.” (Castillo Decl., ¶18.)
17 Grounds for Objection to No. 19: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to
18 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation
19 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010)
20 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment
21 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions,
22 and must not include hearsay or opinion].)
23
24 SUSTAINED ________ OVERRULED _______
25
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28 14
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 Objection No. 20
2 Evidence Objected To:
3 “19. During the operative period of the FUA, WTSC never maintained, inspected, or repaired the
4 sprinkler systems within Barker Park.” (Castillo Decl., ¶19.)
5 Grounds for Objection to No. 20: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to
6 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation
7 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010)
8 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment
9 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions,
10 and must not include hearsay or opinion].)
11
12 SUSTAINED ________ OVERRULED _______
13
14 Objection No. 21
15 Evidence Objected To: “20. During the operative period of the FUA, WTSC never maintained.
16 inspected, or repaired any landscaping deficiencies, including any holes or divots, within the grassy areas
17 of Barker Park.” (Castillo Decl., ¶20.)
18 Grounds for Objection to No. 21: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to
19 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation
20 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010)
21 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment
22 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions,
23 and must not include hearsay or opinion].)
24
25
26 SUSTAINED ________ OVERRULED _______
27
28 15
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1
2 Objection No. 22
3 Evidence Objected To: “21. During the operative period of the FUA, other entities and individuals
4 inspected, maintained, and repaired the common areas of Barker Park, including the landscaping in grassy
5 areas, walkways, sprinkler systems, and landscaping deficiencies such as holes or divots within the grassy
6 areas of Barker Park.” (Castillo Decl., ¶ 21.)
7 Grounds for Objection to No. 22: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to
8 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation
9 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010)
10 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment
11 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions,
12 and must not include hearsay or opinion].)
13
14 SUSTAINED ________ OVERRULED _______
15 Objection No. 23
16 Evidence Objected To: “22. To the best of my knowledge, the FUA never required WTSC to
17 maintain, inspect or repair any facility at Barker Park, including the common grassy areas, walkways, or
18 sprinkler systems.” (Castillo Decl., ¶22.)
19 Grounds for Objection to No. 23: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to
20 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation
21 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010)
22 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment
23 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions,
24 and must not include hearsay or opinion].)
25
26
27
28 16
CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 SUSTAINED ________ OVERRULED _______
2 Objection No. 24
3 Evidence Objected To: “As a condition of WTSC renting the pool to conduct its swimming league,
4 WTSC and the District entered into a Facility Use Agreement ("FUA") on or about June 17, 2021.” (Castillo
5 Decl., ¶ 5.)
6 Grounds for Objection to No. 24: Relevance, Immaterial. See Objection 1-8 above. Violation of
7 the Parol Evidence Rule. Legal Conclusion. Secondary Evidence Rule. (Cal. Evid. Code § 1521.)
8 These paragraphs consist of Mr. Castillo’s apparent interpretation of the FUA, as well as various
9 recitations of provisions of the FUA. This is inadmissible parol evidence, as the language of the agreement
10 is clear and unambiguous. (See Ex. B to the IOE, FUA.) See Objection No. 9 above.
11
12
13 SUSTAINED ________ OVERRULED _______
14
15
16
Dated: August 10, 2023 PORTER SCOTT
17
A PROFESSIONAL CORPORATION
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w
By: _____________________________________
21 William E. Camy
Alison J. Southard
22 Attorneys for Defendant/Cross-Complainant
Wasco Recreation and Park District
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CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
Wasco v. Wasco Recreation and Park District
1
Kern County Superior Court Case No. – BCV-22-100328
2
DECLARATION OF SERVICE
3
4 I am a resident of the United States and of the County, of Sacramento, California. I am over the
age of eighteen years and not a party to the within above-entitled action. My business address is 2180
5 Harvard Street, Suite 500, Sacramento, California.
I am familiar with this Company's practice whereby the mail, after being placed in a designated
6 area, is given the appropriate postage and is deposited in a U.S. mailbox in the City of Sacramento,
7 California, after the close of the day's business.
That on the date below, I served the following: CROSS-COMPLAINANT WASCO
8 RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM
CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO
9 MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO
TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE on all parties in the said action
10 as addressed below by causing a true copy thereof to be served:
11 BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I
am readily familiar with this business’ practice for collecting and processing correspondence for mailing.
12 On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
13 BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an
overnight delivery carrier and addressed to the person(s) listed below. I placed the envelope or package
14 for collection and overnight delivery at my office or a regularly utilized drop box of the overnight delivery
carrier.
15 BY FAX TRANSMISSION: Based on an agreement of the parties to accept service by fax transmission,
I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax
16 machine that I used. A copy of the record of the fax transmission, which I printed out, is attached
XX BY ELECTRONIC SERVICE: Based on a court order or an agreement of the parties to accept service
17 by electronic transmission, I caused the documents to be sent to the persons at the electronic notification
address listed below.
18
19 ADDRESSED AS FOLLOWS:
20 SEE ATTACHED SERVICE LIST
21 I declare under penalty of perjury that the foregoing is true and correct. Executed at Sacramento,
22 California, on August 10, 2023.
23 _________________________
Kristena Champlin
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CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
1 SERVICE LIST
Counsel for Plaintiff Counsel for City of Wasco
2
Matthew Clark Michael C. Keller
3 Doug Fitz-Simmons ROBINSON & KELLER
CHAIN COHN CLARK 3434 Truxtun Avenue, Suite 150
4 1731 Chester Avenue Bakersfield, CA 93301
Bakersfield, CA 93301 rpllaw@aol.com
5
mclark@chainlaw.com
6 dfitzsimmons@chainlaw.com
service@chainlaw.com
7 Counsel for Wasco Tiger Sharks Swim Club and
HDI
8
9 Steven H. Schwartz
Jonathan Moradifar
10 SCHWARTZ & JANZEN, LLP
12100 Wilshire Boulevard, Suite 1125
11 Los Angeles, California 90025
sschwartz@sj-law.com
12 jmoradifar@sj-law.com
whess@sj-law.com
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CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS
SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI
GLOBAL SPECIALTY SE
Preview
1 2 A PROFESSIONAL CORPORATION William E. Camy, SBN 291397 3 Alison J. Southard, SBN 335716 2180 Harvard Street, Suite 500 4 Sacramento, CA 95815 5 TEL: 916.929.1481 FAX: 916.927.3706 6 EMAIL: wcamy@porterscott.com asouthard@porterscott.com 7 Attorneys for Defendant/Cross-Complainant, WASCO RECREATION AND PARK DISTRICT 8 Exempt from filing fee pursuant to Government Code section 6103 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF KERN 11 12 13 TYNA POWELL, Case No.: BCV-22-100328 14 Plaintiff, CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S 15 vs. OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY 16 WASCO RECREATION AND PARK SE’S EVIDENCE IN SUPPORT OF DISTRICT, CITY OF WASCO and DOES 1 OPPOSITION TO MOTION FOR SUMMARY 17 through 50, inclusive, ADJUDICATION AGAINST CROSS- DEFENDANTS WASCO TIGER SHARKS SWIM 18 Defendants. CLUB AND HDI GLOBAL SPECIALTY SE 19 Date: August 15, 2023 Time: 8:30 20 Dept.: H 21 / Complaint filed: February 10, 2022 22 23 Pursuant to section 437c of the Code of Civil Procedure and Rule 3.1354 of the California Rules of 24 Court, Cross-Complainant WASCO RECREATION AND PARK DISTRICT hereby submits the following 25 Objections to the Evidence submitted by WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL 26 SPECIALTY SE in Opposition to the Motion for Summary Adjudication. 27 28 1 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Objection No. 1 2 Evidence Objected To: “Q: Is it typical for a guest to have to walk through the grassy area from 3 the park to get to one facility to another facility? A: Yes. MR. CAMY [counsel for District]: Incomplete 4 hypothetical. Calls for speculation. BY MR. MORADIFAR: Q. Is it typical for a guest to use a walkway to 5 get from one facility to another facility? MR. CAMY: Same objections. MR. FITZ-SIMMONS: Lacks 6 foundation. BY MR. MORADIFAR: You can answer, Ms. Serna. A: Again, it's where they park.” (Exhibit 7 E to the Moradifar Decl., Excerpts from Transcript of Deposition of Maria Christena Serna (“Serna Depo.”), 8 35:3-16.) 9 Grounds for Objection to No. 1: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues 10 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) Speculation. (Cal. Evid. Code § 702.) 11 Lacks Foundation. (Cal. Evid. Code § 403.) Answer posed in response to incomplete hypothetical. 12 The evidence is immaterial to the outcome of the Motion, as the defense and indemnity agreement 13 was not limited to injuries occurring in the pool facility or in areas outside WTSC’s control. (See Ex. B. to 14 the IOE, FUA.) (See Cal. Rules of Court, Rule 3.1350(a)(2) [““Material facts” are facts that relate to the 15 cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion 16 and that could make a difference in the disposition of the motion.”].) 17 Further, the evidence cited is inadmissible, as Ms. Serna provided the testimony in response to 18 questions which posed incomplete hypotheticals and called for speculation. Moreover, the evidence is 19 inadmissible because it is immaterial to the issues of defense and indemnity posed by the Motion. Further, 20 the evidence cited does not support the fact as phrased in Fact 4 (“In order to navigate around Barker Park, 21 visitors either use maintained walkways or walk through the grassy areas of the park to travel from one 22 facility to the next.” Ms. Serna testified it is “typical” that guests “walk through the grassy area from the 23 park to” walk among facilities at the park, and that whether a guest uses a paved walkway depends on 24 “where they park.” 25 26 SUSTAINED ________ OVERRULED _______ 27 28 2 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Objection No. 2: 2 Evidence Objected To: “And is anyone in charge of maintaining any walkways around the 3 playground? A: The maintenance department. Q: And what about any grassy area around the playground? 4 Is anyone responsible for maintaining the grass around the playground? MR. CAMY: Vague. THE 5 WITNESS:· The maintenance department.” (Serna Depo., 24:22-25:4.) 6 Grounds for Objection to No. 2: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues 7 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) Vague. See Objection Nos. 1, 6 above. 8 Further, the testimony was provided in response to a vague question. It also calls for a legal conclusion. It 9 is well-established that evidentiary facts, rather than mere conclusions of law or fact, are required to 10 successfully bring or oppose a motion for summary judgment or adjudication. (See Snider v. Snider (1962) 11 200 CA2d 741, 748-49, 751 [plaintiff’s affidavit submitted in opposition to motion for summary judgment 12 insufficient to create a triable issue of fact where the affidavit merely contained “a series of conclusions 13 of law and fact”]; Sesma v. Cueto (1982) 129 Cal.App.3d 108, 113 [doctor’s conclusory statement that 14 fetus was a stillborn was a legal conclusion unsupported by evidence and insufficient to support motion 15 for summary judgment]; see also Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 772-773 16 [conclusory statements in declaration afforded no weight].) 17 Here, the deponent was asked who was “responsible” for maintaining the grass around the 18 playground, which called for a legal conclusion as to the issue of duty. (See Vasilenko v. Grace Fam. 19 Church (2017) 3 Cal.5th 1077, 1083 [“The existence of a duty is a question of law.”]; see also Cabral v. 20 Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.) Mere legal conclusions are insufficient to successfully 21 oppose a summary judgment motion. (See Snider v. Snider (1962) 200 Cal.App.2d 741, 748-49, 751.) 22 Moreover, whether the District performs maintenance at the subject location is immaterial to the 23 motion. Plaintiff alleges WTSC is responsible for control and maintenance of the subject location, and her 24 allegations are accepted as true for purposes of the tender of defense. Also, just because the District 25 performs maintenance at the subject location does not mean that there are not dual responsibilities for 26 maintenance or remedying / warning of dangerous conditions between the District and the WTSC. 27 28 3 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Therefore, Ms. Serna’s testimony that the District maintained the area is of no consequence to the Motion. 2 Additionally, the terms of the FUA provide that WTSC must defend, indemnify, and hold the District 3 harmless even for injuries caused by a condition of property controlled by the District. 4 Further, the evidence does not support the purported fact as phrased in WTSC’s Fact 6. (“The 5 maintenance workers are also responsible for maintaining the sprinklers, walkways and grassy areas 6 around the facilities, including, but not limited to, the inspection and maintenance of holes on the grassy 7 areas within Barker Park.”) 8 9 SUSTAINED ________ OVERRULED _______ 10 Objection No. 3 11 Evidence Objected To: “Q: And who is in charge of maintaining this walkway? A: The 12 maintenance department. Q: And what about the grassy area surrounding the pool? Who was in charge -- is 13 anyone in charge of maintaining the grass around the pool? A: The maintenance department.” (Serna Depo., 14 27:17-23.) 15 Grounds for Objection to No. 3: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues 16 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection Nos. 1, 2 above. Further, 17 the evidence does not support the purported fact as phrased in WTSC’s Fact 6. (“The maintenance workers 18 are also responsible for maintaining the sprinklers, walkways and grassy areas around the facilities, 19 including, but not limited to, the inspection and maintenance of holes on the grassy areas within Barker 20 Park.”) 21 22 SUSTAINED ________ OVERRULED _________ 23 Objection No. 4 24 Evidence Objected To: “Q: So if a facility is rented out, in other words, you don't know if they 25 would be responsible for filling in a divot like this? MR. CAMY:· Same objections. You can answer if you 26 know. THE WITNESS: The renter would not be responsible for filling the hole. BY MR. MORADIFAR: 27 28 4 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Would the renter be responsible for inspecting the grass at Barker Park for a divot like this? MR. CAMY: 2 Same objections. Calls for a legal conclusion. Calls for speculation. If you know, you can answer. THE 3 WITNESS: The renter would not be responsible for that. BY MR. MORADIFAR: Would a renter at Barker 4 Park be responsible for inspecting walkways at Barker Park? MR. CAMY: Same objections. THE 5 WITNESS: Not necessarily looking for anything, but reporting is something that’s seen. BY MR. 6 MORADIFAR: So, in other words, a renter would not be responsible for maintaining it or reporting it if 7 seen? MR. CAMY: Same objections. THE WITNESS: They would not be responsible for it, but to report 8 it would be crucial if they see damage. (Serna Depo., 44:3-45:7, emphasis added.) 9 Grounds for Objection to No. 4: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues 10 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection Nos. 1-3 above. Lacks 11 Foundation. (Cal. Evid. Code § 403.) Calls for a Legal Conclusion. See No. 2-3 above. Speculation. (Cal. 12 Evid. Code § 702.) Outside the scope of Ms. Serna’s PMK Deposition. 13 The cited testimony is inadmissible because it was provided in response to multiple questions 14 which called for legal conclusions, lacked foundation, called for speculation, and are outside of the scope 15 of the deponent’s testimony as a Personal Most Knowledgeable (“PMK”) witness. (See Declaration of 16 William E. Camy, ¶ 5; Ex. 1 to Camy Decl., Excerpts from Serna Depo., 43:17-25 [objections immediately 17 preceding the cited questions]: “Q: If a facility is rented out, would the renter of the facility be in charge 18 of maintaining a divot like this at Barker Park? MR. CAMY: Lacks foundation. Calls for a legal 19 conclusion. Lacks foundation. Calls for speculation. It's outside the scope of the PMK deposition 20 testimony. If you know the answer to the question, you can answer,” emphasis added.) 21 Irrespective of Ms. Serna’s testimony, it is well settled that as a user of property, WTSC had a duty 22 to inspect and act reasonably, whether that was warning its members/guests of conditions or notifying the 23 District of a potential problem. “‘[P]roperty owners are liable for injuries on land they own, possess, or’ 24 But . . . the phrase ‘own, possess, or control’ is stated in the alternative. A defendant need not own, possess 25 and control property in order to be held liable; control alone is sufficient.” (Emphasis Added) (Alcaraz 26 v. Vece (1997) 14 Cal.4th 1149, 1162, internal citations omitted.) “To comply with this duty, a person who 27 28 5 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 controls property must ‘ “ ‘ “inspect [the premises] or take other proper means to ascertain their condition” 2 ’ ” ’ and, if a dangerous condition exists that would have been discovered by the exercise of reasonable 3 care, has a duty to give adequate warning of or remedy it.” (Staats v. Vintner’s Golf Club, LLC (2018) 25 4 Cal.App.5th 826, 833.) Thus, as Plaintiff’s Complaint alleges, as a renter of the property, WTSC has a 5 duty to inspect the property and remedy / warn of potential dangerous conditions. 6 Further, this evidence is provided to support WTSC’s purported disputed to the District’s material 7 fact that “Plaintiff alleges the location she fell “was negligently and carelessly installed, owned, maintained, 8 repaired, managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement 9 of Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF 10 No. 25 and must be excluded. 11 Moreover, the evidence cited does not support the purported fact as phrased in WTSC 7 (“The 12 District is responsible for maintaining the walkways and grassy areas of Barker Park, even if a facility is 13 rented out.”) 14 15 SUSTAINED ________ OVERRULED _______ 16 Objection No. 5 17 Evidence Objected To: “Q: To be clear, as of the date of that incident, June 19, 2021, was the grass 18 at Barker Park maintained by the maintenance department for Wasco Recreation & Park District? A: That 19 is correct. at Barker Park maintained by the maintenance department of Wasco Recreation & Park District? 20 A: Yes. Q: As of June 19, 2021, was the sprinkler system at Barker Park repaired by the maintenance 21 department of Wasco Recreation & Park District? A: Yes.” (Serna Depo., 48:25-49:13.) 22 Grounds for Objection to No. 5: Relevance. (Cal. Evid. Code § 350.) Vague. (Cal. Evid. Code § 23 350.) Immaterial to the issues raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See 24 Objection No. 1-4 above. Moreover, the evidence is submitted to cite an improper legal conclusion, and not 25 a material fact. (See WTSC Fact 18, “As of June 19, 2021, it was the District’s duty to maintain the grass 26 27 28 6 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 and sprinkler systems at Barker Park, including the repair and maintenance of any holes or divots on the 2 green space,” emphasis added.) 3 Further, this evidence is provided to support WTSC’s purported disputed to the District’s material 4 fact that “Plaintiff alleges the location she fell “was negligently and carelessly installed, owned, maintained, 5 repaired, managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement 6 of Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF 7 No. 25 and must be excluded. 8 9 SUSTAINED ________ OVERRULED _______ 10 11 Objection No. 6 12 Evidence Objected To: “Q: From your understanding, as of June 19, 2021, if a hole existed in the 13 grass area at Barker Park, would it be the responsibility of your maintenance workers from the Wasco 14 Recreation & Park District to repair? MR. CAMY: Same objections. BY MR. KELLAR: Q: You can 15 answer. A: Yes. (Serna Depo., 49:23-50:6, emphasis added.) 16 Grounds for Objection to No. 6: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues 17 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection Nos. 1-5 above. Lacks 18 Foundation. (Cal. Evid. Code § 403.) Calls for a Legal Conclusion. See No. 9 above. Speculation. (Cal. 19 Evid. Code § 702.) Vague. 20 The cited testimony is inadmissible because it was provided in response to a question which called 21 for legal conclusions, lacked foundation, and was vague. (See Declaration of William E. Camy, ¶ 5; Ex. 1 22 to Camy Decl., Excerpts from Serna Depo., 49:14-22 [objections immediately preceding the cited 23 questions]: “Q: And if any hole existed in the grass area of ·Barker Park as of June 19, 2021, which was in 24 need of ·repair, would it be the responsibility of the maintenance department of the Wasco Recreation & 25 Park District to perform such repair? MR. CAMY: Vague. Lacks foundation. Calls for a legal conclusion. 26 27 28 7 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 BY MR. KELLAR: Q: Let me rephrase the question.” (emphasis added) Further, the evidence is submitted 2 for the improper purpose of supporting a legal conclusion, rather than a material fact. (See WTSC Fact 18, 3 “As of June 19, 2021, it was the District’s duty to maintain the grass and sprinkler systems at Barker Park, 4 including the repair and maintenance of any holes or divots on the green space.”) 5 Further, this evidence is provided to support WTSC’s purported disputed to the District’s material 6 fact that “Plaintiff alleges the location she fell “was negligently and carelessly installed, owned, maintained, 7 repaired, managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement 8 of Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF 9 No. 25 and must be excluded. 10 11 SUSTAINED ________ OVERRULED _______ 12 13 Objection No. 7 14 Evidence Objected To: “Q: And was that area that was cautioned off that you observed on Monday, 15 June 21, 2021, an area of green space that was typically maintained by the maintenance department of the 16 Wasco Recreation & Park District? MR. CAMY: Vague. THE WITNESS: The grass area’s maintained by 17 the maintenance department. BY MR. KELLAR: Of Wasco Recreation & Park District; correct? A: That is 18 correct.” (Serna Depo., 77:22-78:7.) 19 Grounds for Objection to No. 7: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues 20 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection No. 1-6 above. Vague. 21 This testimony was provided in response to a vague question. Further, this evidence is provided to support 22 WTSC’s purported disputed to the District’s material fact that “Plaintiff alleges the location she fell “was 23 negligently and carelessly installed, owned, maintained, repaired, managed, constructed, controlled, 24 inspected by Defendants…” (See District’s Separate Statement of Undisputed Material Facts, UMF No. 25.) 25 The cited testimony does not contradict the District’s UMF No. 25 and must be excluded. 26 27 28 8 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 SUSTAINED ________ OVERRULED _______ 2 3 Objection No. 8 4 Evidence Objected To: “Q: My question is this: Was the place that was cautioned off, that area of 5 the green space of Barker Park, part of the area that was generally maintained by the maintenance 6 department of Wasco Recreation & Park District as of June 19, 2021? A: Yes.” (Serna Depo., 79:2-7.) 7 Grounds for Objection to No. 8: Relevance. (Cal. Evid. Code § 350.) Immaterial to the issues 8 raised in this Motion. (See Cal. Rules of Court, Rule 3.1350(a)(2).) See Objection No. 1-7 above. Further, 9 this evidence is provided to support WTSC’s purported disputed to the District’s material fact that “Plaintiff 10 alleges the location she fell “was negligently and carelessly installed, owned, maintained, repaired, 11 managed, constructed, controlled, inspected by Defendants…” (See District’s Separate Statement of 12 Undisputed Material Facts, UMF No. 25.) The cited testimony does not contradict the District’s UMF No. 13 25 and must be excluded. 14 15 SUSTAINED ________ OVERRULED _______ 16 17 Objection No. 9 18 Evidence Objected To: 19 “8. To the best of my knowledge, the FUA only encompassed the lease of the Wasco Pool facility, 20 in addition to shelters on swim day meets.” (Castillo Decl., ¶ 8.) 21 Grounds for Objection to No. 9: Relevance, Immaterial. See Objection 1-8 above. Violation of 22 the Parol Evidence Rule. Legal Conclusion. Secondary Evidence Rule. (Cal. Evid. Code § 1521.) 23 These paragraphs consist of Mr. Castillo’s apparent interpretation of the FUA, as well as various 24 recitations of provisions of the FUA. This is inadmissible parol evidence, as the language of the agreement 25 is clear and unambiguous. (See Ex. B to the IOE, FUA.) Indeed, apart from a few select paragraphs, Mr. 26 27 28 9 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Castillo’s Declaration merely recites the FUA provisions, which are equally available in the FUA itself, 2 which is already in evidence. 3 “Where contract language is clear and explicit and does not lead to an absurd result, [the court] 4 ascertain[s] [the parties’] intent from the written provisions and go[es] no further.” Crosby Est. at Rancho 5 Santa Fe Master Ass'n v. Ironshore Specialty Ins. Co., 498 F. Supp. 3d 1242, 1252 (S.D. Cal. 2020); see 6 also Bank of the W. v. Superior Court, (1992) 2 Cal.4th 1254, 1264 (1992) (if a policy's language is “clear 7 and explicit, it governs”). 8 Moreover, the FUA expressly provides that “the Wasco Tiger Sharks Swim Club shall indemnify, 9 defend, and hold harmless Wasco Recreation and Park District, its officers, employees, and agents from any 10 and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to 11 any person or persons or damage to property arising at any time out of or in any way related to the 12 Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco 13 Recreation and Park District, unless solely caused by the gross negligence or willful misconduct of Wasco 14 Recreation and Park District, its officers employees, or agents.” (Ex. B to the IOE, FUA, emphasis added.) 15 As such, Mr. Castillo’s apparent interpretation that WTSC merely rented the pool facility and did not 16 maintain or control common areas is immaterial to the issues raised in this Motion. See Objection 1 above, 17 as the indemnity provision applies in either event. 18 This purported fact is a legal conclusion, rather than a fact. As such, it is insufficient to successfully 19 oppose the District’s Motion. See Snider v. Snider (1962) 200 Cal.App.2d 741, 748-49, 751; Sesma v. Cueto 20 (1982) 129 Cal.App.3d 108, 113; see also Crosby Est. at Rancho Santa Fe Master Ass'n v. Ironshore 21 Specialty Ins. Co. (S.D. Cal. 2020) 498 F.Supp.3d 1242, 1252 [“Under California law, “interpretation of an 22 insurance policy is a question of law.”]; Waller v. Truck Ins. Exch., Inc. (1995) 11 Cal.4th 1, 18.) 23 Additionally, the testimony lacks foundation, as there is no foundation Mr. Castillo’s assertion that 24 the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755 25 [declarations made in support of and in opposition to motions for summary judgment must show declarant's 26 27 28 10 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 personal knowledge and competency to testify, must state facts and not conclusions, and must not include 2 hearsay or opinion].) 3 4 SUSTAINED ________ OVERRULED _______ 5 Objection No. 10 6 Evidence Objected To: 7 “9. Pursuant to the FUA, WTSC agreed to "inspect, maintain, and repair the pool deck, guard room, 8 and restrooms for trash and personal items left on decks or at the pool." WTSC also agreed to "lock and 9 unlock restrooms, buildings, and gates" within the pool facility. (See, Exhibit A, page 1, bullet points 8-9). 10 (Castillo Decl., ¶ 9.) 11 Grounds for Objection to No. 10: Relevance, Immaterial. See Objection 1-8 above. Violation of 12 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. Additionally, the testimony lacks 13 foundation, as there is no foundation Mr. Castillo’s assertion that the FUA only contemplated rental of the 14 pool. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755 [declarations made in support of and in 15 opposition to motions for summary judgment must show declarant's personal knowledge and competency 16 to testify, must state facts and not conclusions, and must not include hearsay or opinion].) 17 18 SUSTAINED ________ OVERRULED _______ 19 20 Objection No. 11 21 Evidence Objected To: 22 “10. Pursuant to the FUA, the District agreed to maintain the pool to the degree that swimming can 23 be safely conducted at all times. (See, Exhibit A, page 1, bullet points 7).” 24 (Castillo Decl., ¶ 10.) 25 Grounds for Objection to No. 11: Relevance, Immaterial. See Objections 1-8 above. Violation of 26 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. 27 28 11 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 2 SUSTAINED ________ OVERRULED _______ 3 4 Objection No. 12 5 Evidence Objected To: 6 “11. Pursuant to the FUA, WTSC was only required "to provide a list of duties to be performed by 7 District employee." (See, Exhibit A, page 2, bullet point 1).” (Castillo Decl., ¶ 11.) 8 Grounds for Objection to No. 12: Relevance, Immaterial. See Objection 1-8 above. Violation of 9 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. 10 11 SUSTAINED ________ OVERRULED _______ 12 13 Objection No. 13 14 Evidence Objected To: 15 “12. Pursuant to the FUA, the District provided WTSC with work orders in order to notify the 16 District of any repairs to the pool area.” (Castillo Decl., ¶ 12.) 17 Grounds for Objection to No. 13: Relevance, Immaterial. See Objection 1-8 above. Violation of 18 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. 19 20 SUSTAINED ________ OVERRULED _______ 21 22 Objection No. 14 23 Evidence Objected To: 24 “13. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area 25 landscaping in grassy areas within Barker Park.” (Castillo Decl., ¶ 13.) 26 27 28 12 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Grounds for Objection to No. 14: Relevance, Immaterial. See Objection 1-8 above. Violation of 2 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. 3 Objection No. 15 4 Evidence Objected To: 5 “14. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area 6 landscaping in grassy areas within Barker Park.” (Castillo Decl., ¶ 14.) 7 Grounds for Objection to No. 15: Relevance, Immaterial. See Objection 1-8 above. Violation of 8 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. 9 SUSTAINED ________ OVERRULED _______ 10 11 Objection No. 16 12 Evidence Objected To: 13 “15. Nothing in the FUA required WTSC to maintain, inspect, or repair the sprinkler systems within 14 Barker Park.” (Castillo Decl., ¶ 15.) 15 Grounds for Objection to No. 16: Relevance, Immaterial. See Objection 1-8 above. Violation of 16 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. 17 SUSTAINED ________ OVERRULED _______ 18 19 Objection No. 17 20 Evidence Objected To: 21 “16. Nothing in the FUA required WTSC to maintain, inspect, or repair any landscaping deficiencies, 22 including any holes or divots, within the grassy areas of Barker Park.” (Castillo Decl., ¶ 16.) 23 Grounds for Objection to No. 17: Relevance, Immaterial. See Objection 1-8 above. Violation of 24 the Parol Evidence Rule. Legal Conclusion. See Objection No. 9 above. 25 SUSTAINED ________ OVERRULED _______ 26 27 28 13 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Objection No. 18 2 Evidence Objected To: 3 “17. During the operative period of the FUA, WTSC never maintained, inspected, or repaired the 4 common area landscaping in grassy areas within Barker Park.” (Castillo Decl., ¶ 17.) 5 Grounds for Objection to No. 18: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to 6 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation 7 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 8 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment 9 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions, 10 and must not include hearsay or opinion].) 11 12 SUSTAINED ________ OVERRULED _______ 13 Objection No. 19 14 Evidence Objected To: 15 “18. During the operative period of the FUA, WTSC never maintained, inspected, or repaired the 16 common area walkways within Barker Park.” (Castillo Decl., ¶18.) 17 Grounds for Objection to No. 19: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to 18 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation 19 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 20 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment 21 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions, 22 and must not include hearsay or opinion].) 23 24 SUSTAINED ________ OVERRULED _______ 25 26 27 28 14 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 Objection No. 20 2 Evidence Objected To: 3 “19. During the operative period of the FUA, WTSC never maintained, inspected, or repaired the 4 sprinkler systems within Barker Park.” (Castillo Decl., ¶19.) 5 Grounds for Objection to No. 20: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to 6 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation 7 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 8 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment 9 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions, 10 and must not include hearsay or opinion].) 11 12 SUSTAINED ________ OVERRULED _______ 13 14 Objection No. 21 15 Evidence Objected To: “20. During the operative period of the FUA, WTSC never maintained. 16 inspected, or repaired any landscaping deficiencies, including any holes or divots, within the grassy areas 17 of Barker Park.” (Castillo Decl., ¶20.) 18 Grounds for Objection to No. 21: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to 19 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation 20 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 21 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment 22 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions, 23 and must not include hearsay or opinion].) 24 25 26 SUSTAINED ________ OVERRULED _______ 27 28 15 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 2 Objection No. 22 3 Evidence Objected To: “21. During the operative period of the FUA, other entities and individuals 4 inspected, maintained, and repaired the common areas of Barker Park, including the landscaping in grassy 5 areas, walkways, sprinkler systems, and landscaping deficiencies such as holes or divots within the grassy 6 areas of Barker Park.” (Castillo Decl., ¶ 21.) 7 Grounds for Objection to No. 22: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to 8 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation 9 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 10 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment 11 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions, 12 and must not include hearsay or opinion].) 13 14 SUSTAINED ________ OVERRULED _______ 15 Objection No. 23 16 Evidence Objected To: “22. To the best of my knowledge, the FUA never required WTSC to 17 maintain, inspect or repair any facility at Barker Park, including the common grassy areas, walkways, or 18 sprinkler systems.” (Castillo Decl., ¶22.) 19 Grounds for Objection to No. 23: Relevance. (Cal. Evid. Code § 350.) Evidence immaterial to 20 Motion. See Objections 1-8 above. Additionally, the testimony lacks foundation, as there is no foundation 21 Mr. Castillo’s assertion that the FUA only contemplated rental of the pool. (Bozzi v. Nordstrom, Inc. (2010) 22 186 Cal.App.4th 755 [declarations made in support of and in opposition to motions for summary judgment 23 must show declarant's personal knowledge and competency to testify, must state facts and not conclusions, 24 and must not include hearsay or opinion].) 25 26 27 28 16 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 SUSTAINED ________ OVERRULED _______ 2 Objection No. 24 3 Evidence Objected To: “As a condition of WTSC renting the pool to conduct its swimming league, 4 WTSC and the District entered into a Facility Use Agreement ("FUA") on or about June 17, 2021.” (Castillo 5 Decl., ¶ 5.) 6 Grounds for Objection to No. 24: Relevance, Immaterial. See Objection 1-8 above. Violation of 7 the Parol Evidence Rule. Legal Conclusion. Secondary Evidence Rule. (Cal. Evid. Code § 1521.) 8 These paragraphs consist of Mr. Castillo’s apparent interpretation of the FUA, as well as various 9 recitations of provisions of the FUA. This is inadmissible parol evidence, as the language of the agreement 10 is clear and unambiguous. (See Ex. B to the IOE, FUA.) See Objection No. 9 above. 11 12 13 SUSTAINED ________ OVERRULED _______ 14 15 16 Dated: August 10, 2023 PORTER SCOTT 17 A PROFESSIONAL CORPORATION 18 19 20 w By: _____________________________________ 21 William E. Camy Alison J. Southard 22 Attorneys for Defendant/Cross-Complainant Wasco Recreation and Park District 23 24 25 26 27 28 17 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE Wasco v. Wasco Recreation and Park District 1 Kern County Superior Court Case No. – BCV-22-100328 2 DECLARATION OF SERVICE 3 4 I am a resident of the United States and of the County, of Sacramento, California. I am over the age of eighteen years and not a party to the within above-entitled action. My business address is 2180 5 Harvard Street, Suite 500, Sacramento, California. I am familiar with this Company's practice whereby the mail, after being placed in a designated 6 area, is given the appropriate postage and is deposited in a U.S. mailbox in the City of Sacramento, 7 California, after the close of the day's business. That on the date below, I served the following: CROSS-COMPLAINANT WASCO 8 RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO 9 MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE on all parties in the said action 10 as addressed below by causing a true copy thereof to be served: 11 BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondence for mailing. 12 On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 13 BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the person(s) listed below. I placed the envelope or package 14 for collection and overnight delivery at my office or a regularly utilized drop box of the overnight delivery carrier. 15 BY FAX TRANSMISSION: Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax 16 machine that I used. A copy of the record of the fax transmission, which I printed out, is attached XX BY ELECTRONIC SERVICE: Based on a court order or an agreement of the parties to accept service 17 by electronic transmission, I caused the documents to be sent to the persons at the electronic notification address listed below. 18 19 ADDRESSED AS FOLLOWS: 20 SEE ATTACHED SERVICE LIST 21 I declare under penalty of perjury that the foregoing is true and correct. Executed at Sacramento, 22 California, on August 10, 2023. 23 _________________________ Kristena Champlin 24 25 26 27 28 18 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE 1 SERVICE LIST Counsel for Plaintiff Counsel for City of Wasco 2 Matthew Clark Michael C. Keller 3 Doug Fitz-Simmons ROBINSON & KELLER CHAIN COHN CLARK 3434 Truxtun Avenue, Suite 150 4 1731 Chester Avenue Bakersfield, CA 93301 Bakersfield, CA 93301 rpllaw@aol.com 5 mclark@chainlaw.com 6 dfitzsimmons@chainlaw.com service@chainlaw.com 7 Counsel for Wasco Tiger Sharks Swim Club and HDI 8 9 Steven H. Schwartz Jonathan Moradifar 10 SCHWARTZ & JANZEN, LLP 12100 Wilshire Boulevard, Suite 1125 11 Los Angeles, California 90025 sschwartz@sj-law.com 12 jmoradifar@sj-law.com whess@sj-law.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OBJECTIONS TO WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE’S EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION AGAINST CROSS-DEFENDANTS WASCO TIGER SHARKS SWIM CLUB AND HDI GLOBAL SPECIALTY SE