Ruling
Shonna L Rives vs. Brian Vikstrom
Jul 23, 2024 |
CU24-00751
CU24-00751
Motion to Recognize Executor Status and Right to Self-Representation
TENTATIVE RULING
This motion is denied, for multiple reasons.
First, there is no proof of service yet filed, to show that the motion papers were served
on NORTHBAY MEDICAL CENTER (“NORTHBAY”), which has appeared in this action
and thus must be served with any motion papers.
Second, Moving Party cannot represent the estate for which she purports to bring this
action.
In general, any person appearing in an action purporting to represent the interests of
another person must be licensed to practice law in California. Business & Professions
Code §6125 [“No person shall practice law in California unless the person is an active
licensee of the State Bar”].
For example, corporations cannot represent themselves in court, and must retain
counsel to represent them. Merco Construction Engineers v. Municipal Court (1978) 21
Cal.3d 724; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898.
Likewise, a civil action filed against a third party on behalf of a trust could not be brought
in pro per by the trustee. Ziegler v. Nickel (1998) 64 Cal.App.4th 545.
There are some very limited situations in which a trustee or executor of an estate can
appear in pro per. Those appear restricted to probate court filings in which the trustee
or executor is attempting to fulfill a fiduciary duty, and does not extend to filing civil
actions against a third party.
In Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417, a successor trustee of an inter
vivos trust was found to have properly filed in pro per both an accounting and a petition
with the probate court to modify and terminate the trust, and for trustee’s fees, after she
sold the settlor’s home.
However, when a trustee or executor brings a civil action against a third party on behalf
of the trust or estate, they can only do so through a licensed California attorney, and
cannot proceed in pro per. Hansen v. Hansen (2003) 114 Cal.App.4th 618; Downey v.
Johnson (1968) 263 Cal.App.2d 775.
Even some filings in probate cannot be made by a pro per trustee or executor.
In Estate of Sanchez (2023) 95 Cal.App.5th 331, a pro per filing of a partition by sale of
real property in probate court by the personal representative of an estate was found to
constitute the unauthorized practice of law. The court reasoned that because it sought
a remedy against third party co-owners of that property, for the benefit of the estate’s
beneficiaries, it could not be pursued in pro per, even though the filing was made in a
probate case.
The matter before this court can be distinguished from Downey and Hansen, in
that it involves proceedings filed in the probate matter. Yet, unlike in Donkin and
Finkbeiner, and more akin to the facts of Downey and Hansen, here Leslie filed
claims against third parties for the benefit of the beneficiaries of Frank's estate.
That Leslie brought the petition pursuant to section 850 does not alter the fact
that she did so for the benefit of the estate's beneficiaries, including herself,
rather than to fulfill her duties as executor and personal representative. Id. at
342.
The medical malpractice “wrongful death” action at issue in the present civil case was
filed on behalf of Decedent’s estate, against third parties. It can only be properly filed
through a California licensed attorney. This motion for court approval of the executor of
Decedent’s estate’s pro per status thus must be denied.
Furthermore, an executor of an estate appointed by another state who files an action in
California on behalf of the estate must first file an ancillary probate action here in
California, per Probate Code §§12510 et seq. It is only upon the ancillary appointment
that the executor (and only through a California licensed attorney) would then have
standing to bring and/or maintain a California action on behalf of Decedent’s estate.
Smith v. Cimmet (2011) 199 Cal.App.4th 1381.
There is no indication at this time that any ancillary probate petition has been filed by
the moving party here.
Thus, for many reasons, this motion must be denied. Moving party is directed to file the
required ancillary probate proceeding in California, and immediately retain a licensed
California attorney to represent the estate, if she intends to proceed further on this civil
action on behalf of the estate.
Ruling
Marco Castro vs The Ritz-Carlton Hotel Company LLC
For Plaintiff Marco Castro: Alik Ekmekchyan
For Defendant and Cross-Complainant The Ritz-Carlton Hotel Company, LLC: Paul J. Lipman, Christopher A. Richardson
For Cross-Defendant and Cross-Complainant IAM Pacific Wellness, Inc. dba Premier Fitness Service: Kari L. Probst
RULING
For the reasons set forth herein the hearing on the motion of The Ritz-Carlton Hotel Company, LLC, for Summary Judgment, is continued to August 14, 2024. Plaintiffs are to file and serve a revised opposition and a revised response to Defendant’s separate statement of undisputed material facts no later than August 31, 2024. A reply brief, if any, shall be filed and served by Defendant no later than August 9, 2024.
The Trial Date of 9/4/24 is confirmed.
Background
This action commenced on September 21, 2022, by the filing of the complaint by Plaintiff Marco Castro (“Castro”) against Defendant The Ritz-Carlton Hotel Company, LLC (“Ritz-Carlton”), for personal injury based on negligence and premises liability.
As alleged in the complaint:
On April 8, 2022, Castro was injured as a result of Ritz-Carlton’s “failure to adequately maintain, inspect, repair, manage, supervise, and/or control” their premises. (Comp. ¶ L-1.) Specifically, the alleged injuries occurred when Castro was utilizing a weight bench. (Comp. ¶ GN-1.)
On October 21, 2022, Ritz-Carlton filed an answer to the complaint asserting a general denial and 28 affirmative defenses.
On January 24, 2023, Ritz-Carlton filed a cross-complaint against IAM Pacific Wellness, Inc. dba Premier Fitness Service (“Premier”) for apportionment of fault, indemnification, and declaratory relief. Premier then filed cross-complaints against Castro and Ritz-Carlton.
Ritz-Carlton now moves for summary judgment against Castro on the grounds that “one or more elements of Plaintiff’s causes of action for General Negligence and Premises Liability . . . cannot be established, and that the elements of notice and causation cannot be established, so that judgment is appropriate on the entire Complaint. (Notice of Motion, p. 2., ll. 4-7.) Ritz-Carlton also argues that there was no defect in the property claimed to have caused Castro’s claimed injuries. Premier joins in the motion for summary judgment.
Plaintiff opposes the motion on the grounds that Ritz-Carlton fails to meet its burden and that there are triable issues of material fact that preclude the granting of summary judgment.
Analysis
Evidentiary Objections
“In granting or denying a motion for summary judgment or summary adjudication, the Court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)
The Court will reserve ruling on the evidentiary objections pending further briefing by the parties.
Standard on Summary Judgment
A Defendant’s motion for summary judgment asks the Court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the Court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The Court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a Defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.)
Once a moving Defendant meets its initial burden, the burden shifts to the Plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if Plaintiff is unable to do so, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)
In ruling on a motion for summary judgment, the trial Court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)
In resolving the motion, the Court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial Court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)
“ ‘Summary judgment law in this state . . . continues to require a Defendant moving for summary judgment to present evidence, and not simply point out that the Plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the Defendant must ‘ “support[ ]” ’ the ‘ “motion” ’ with evidence including ‘ “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” ’ must or may ‘ “be taken.” ’ (Code Civ. Proc., § 437c, subd. (b).) The Defendant may, but need not, present evidence that conclusively negates an element of the Plaintiff’s cause of action. The Defendant may also present evidence that the Plaintiff does not possess, and cannot reasonably obtain, needed evidence - as through admissions by the Plaintiff following extensive discovery to the effect that he has discovered nothing. But, as Fairbank v. Wunderman Cato Johnson (9th Cir.2000) 212 F.3d 528 concludes, the Defendant must indeed present evidence [ ]: Whereas, under federal law, ‘ “pointing out through argument’ (id. at p. 532) may be sufficient . . ., under state law, it is not.’ ” [Citation.]” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889-890.)
Separate Statement
“Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “ ‘setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.’ ” California Rules of Court, rule 3.1350(d)(2)4 states: “ ‘The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.’ ” Under the Rules of Court, “ ‘ “Material facts’ “ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.’ ” (Rule 3.1350(a)(2).)” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 850-851.)
“The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “ ‘The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial Court to hone in on the truly disputed facts.’ ” [Citation.]” (Ibid.)
“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Ibid.)
Castro’s responses to Ritz-Carlton’s separate statement of undisputed material facts are unhelpful. As what appears to have become common practice in opposing a motion for summary judgment, many of the responses are not made in good faith and appear to be attempts to create triable issues where none exist. For many of the facts, Plaintiff’s responses completely fail to specifically address what is being asserted, instead laying out lengthy recitations of “facts” that are not relevant to what is being stated. As just one example: Undisputed material fact No. 3 states, “The gym has exactly one ‘decline’ bench that has never been replaced or repaired, and Plaintiff was using it to do dumbbell presses while leaning back (declined) on the bench.” In response, Castro makes a meritless objection that the fact is overbroad, discusses the decline bench’s owner’s manual, discusses inspections, discusses Castro’s experts’ opinions regarding standards, etc. In total, the “response” consists of 22 paragraphs yet completely fails to address the stated fact. These types of responses are pervasive throughout and are improper.
Plaintiff will be ordered to revise the response and provide material, good faith, responses that directly address the facts stated. If a fact is not reasonably subject to dispute, Castro must so admit. If the specific fact asserted is reasonably disputed, Castro should so state and reference the supporting admissible evidence.
Negligence and Premises Liability
“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability “ ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’ ”; accordingly, “ ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ ” [Citations.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
“Broadly speaking, premises liability alleges a Defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v. American Multi-Cinema (1999) 72 Cal.App.4th 1403, 1406, fn. 1.)
“A Plaintiff seeking recovery for negligence against a landowner must establish sufficient facts or circumstances that support an inference of a breach of duty, to defeat a defense summary judgment motion. [Citation.] It is not enough to provide speculation or conjecture that a dangerous condition of property might have been present at the time of the accident.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421.)
“The fact that an accident occurred does not give rise to a presumption that it was caused by negligence.” (Id. at p. 432.)
Plaintiff’s entire opposition, as well as the opinions of his expert, presume the existence of a dangerous condition. Yet, Castro has provided no evidence of a dangerous condition. Ritz Carlton, on the other hand, has provided evidence that there was no dangerous condition present at the time of the accident, which contributed to Castro being injured. If there was no dangerous condition of the property that caused or contributed to his injuries, at the time of the accident, there is no viable premises liability case against Ritz Carlton.
However, Plaintiff’s counsel and Plaintiff’s expert have declared under penalty of perjury that there was an inspection scheduled for July 16, 2024. That date is after the date that the opposition was filed but has since passed. Plaintiff’s counsel states that Plaintiff needs additional time. (Ekmekchyan Dec., ¶ 2 & Exh. A.)
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the Court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc., 437c, subd. (h).)
While the Court is not pleased that Plaintiff did not inspect the weight bench previously, the Court finds that the inspection should take place, and any relevant report prepared, before the Court rules on the motion for summary judgment.
The continued hearing date will be less than 30 days before the date set for trial. The Court finds good cause, based on the above, to hear the motion less than 30 days before the date of trial pursuant to Code of Civil Procedure section 437c, subdivision (a)(3). In the meantime, the parties are strongly encouraged to engage in meaningful settlement negotiations.
While deferring its analysis of the majority of the arguments raised in the motion and opposition, the Court will note that res ipsa loquitur is inapplicable to the current action.
“ ‘Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. [Citations.] It is based on a theory of ‘ “probability” ’ where there is no direct evidence of Defendant's conduct, [citations] permitting a common sense inference of negligence from the happening of the accident. [Citations.] The rule thus assists Plaintiffs in negligence cases in regard to the production of evidence. [¶] The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and Defendant was probably the person who was responsible. [Citations.] In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission. [Citation.] [¶] A Plaintiff must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the Defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the Plaintiff. [Citations.]’ ” [Citation.]” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.)
As will be further explained following further briefing by the parties, Plaintiff can not satisfy the three prongs, to establish res ipsa loquitur, set forth above.
Preview
FILED: NEW YORK COUNTY CLERK 04/08/2024 12:56 PM INDEX NO. 152006/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 04/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ________________________________________________________________Ç KEVIN KAUFMAN, Index No. 152006/2024 Plaintiff, STIPULATION -against- BURGER KING HOLDINGS INC. and BURGER KING RESTAURANT, Defendants. ___________________________________________________________________Ç IT IS HEREBY STIPULATED by and between the attorneys for the plaintiff and the attorney for the defendants, as follows: defendants' 1. The time to answer the Summons and Complaint is hereby extended to May 3, 2024. 2. Facsimile or e-mail signatures may be deemed and be given the same effect as originals. Dated: New York, New York JOEL S. FARLEY, ESQ. April 4, 2024 Attorney for Plaintiff Joel t 0 s Street, Suite 8E ew or ew York 10019 (917) 231-4898 Westbury, New York JAY L. YACKOW, ESQ. April 4, 2024 Attorney for Defendants BURGER KING HOLDINGS INC. and BURG R KING RESTAURANT 355 Posi venue, Suite 201 Westbu , New York 11590 (516) 9 -4040 1 of 1