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1 McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
2 Anthony N. DeMaria, #177894
anthony. demaria@mccormickbarstow. com
3 Daniel L. Wainwright, #193486 E-FILED
daniel. wainwright@mccormickbarstow. com 7/24/2018 4:20 PM
4 7647 North Fresno Street FRESNO COUNTY SUPERIOR COURT
Fresno, California 93720
By: K. Daves, Deputy
5 Telephone: (559)433-1300
Facsimile: (559) 433-2300
6
Attorneys for Defendant,
7 QUAIL LAKE COMMUNITY ASSOCIATION,
a California Corporation
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11
12 ADRIAN GUERRERO, Case No. 16CECG03895
{Consolidated with 17CECG01087]
13 Plaintiff,
DEFENDANT, QUAIL LAKE
14 V. COMMUNITY ASSOCIATION'S NOTICE
OF MOTION FOR SUMMARY JUDGMENT
15 QUAIL LAKE COMMUNITY OR, IN THE ALTERNATIVE, MOTION
ASSOCIATION, a California Corporation; FOR SUMMARY ADJUDICATION
16 IAIN LEVI OWENS; RICHARD L. OWENS,
II, JENNIFER M. OWENS and DOES I to Date: October 31, 2018
17 100, Time: 3:30 p.m.
Dept.: 402
18 Defendants.
19
CYPRESS INSURANCE COMPANY,
20
Plaintiff,
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IAIN LEVI OWENS; RICHARD L. OWENS,
23 II; JENNIFER M. OWENS; and DOES 1 to 10,
24 Defendants.
25
26 PLEASE TAKE NOTICE that on October 31, 2018, at 3:30p.m., or as soon thereafter as this
27 matter may beheard inDepartment No. 402 ofthe Fresno County Superior Court, located at 1130 "O"
28 Street. Fresno, CA, Defendant, QUAIL LAKE COMMUNITY ASSOCIATION ("QUAIL LAKE"),
McCormick, Barstow, 1
Sheppard. Wayte &
CARRUTH LLP DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR
7647 NORTH FRESNO STREET
FRESNO. CA 93720
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 will move this Court for an order granting Summary Judgment or, in the alternative. Summary
2 Adjudication as to all of the claims asserted by Plaintiff, ADRIAN GUERRERO, against QUAIL
3 LAKE as more fully described in his December 7, 2016 Complaint for Damages.
4 With respect to QUAIL LAKE, the Complaint asserts only one cause of action (i.e., the First
5 Cause of Action) for "Premises Liability" related to a motor vehicle accident involving Plaintiff and
6 occurring on December 4, 2015 at QUAIL LAKE.
7 The Motion for Summary Judgment/Adjudication, which seeks to dispose ofthe lone cause of
8 action for "Premises Liability") in the Complaint advanced by Plaintiffagainst QUAIL LAKE, will be
9 made on the following grounds/issues:
10 First Cause of Action for "Premises Liability"'
11 (a) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e.,
"Premises Liability") has no merit because QUAIL LAKE owed no duty to protect
12 Plaintiff from the conduct of IAIN OWENS;
13 (b) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e.,
"Premises Liability") has no merit because QUAIL LAKE was not "Negligent";
14
(c) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e.,
15 "Premises Liability") has no merit because the area ofthe accident was not a "Dangerous
Condition" at QUAIL LAKE;
16
(d) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e.,
17 "Premises Liability") has no merit because QUAIL LAKE was NOT on "Notice" ofany
"Dangerous Condition" at QUAIL LAKE; and,
18
(e) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e.,
19 "Premises Liability") has no merit because no act or omission on the part of QUAIL
LAKE caused, contributed to, or was a substantial factor in causing any injury to
20 Plaintiff and, therefore, was not a cause of harm to Plaintiff.
21 Alternatively, and in compliance with California Rules ofCourt, Rule 3.1350(b) and California
22 Code of Civil Procedure §437c(f), this moving Defendant seeks, in the alternative. Summary
23 Adjudication as to each of Plaintiffs separate causes of action and/or claims against QUAIL LAKE.
24 This Motion will further be based on this Notice of Motion, the Memorandum of Points and
25
26 Plaintiffs December 7,2016 Complaint for Damages contains a total ofthree causes ofaction. The first cause ofaction is
for "Premises Liability" againstQUAIL LAKE and is the subject of thisMotion. The second cause of action is for
27 "Vehicular Negligence" and is asserted against only IAIN LEV! OWENS, RICHARD L. OWENS, II and JENNIFER M.
OWENS. The third cause of action is for "Violation of Civil Code §1714.1" and is asserted against only RICHARD L.
28 OWENS, II and JENNIFER M. OWENS.
McCormick, Barstow,
Sheppard, wayte a
Carruth LLP DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR
7647 NORTH FRESNO STREET
FRESNO. CA 93720 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
1 Authorities served and filed herewith, all judicially noticeable documents, the Statement of Evidence
2 (Exhibits"A - ??," e.g., the Declaration of Dirk Poeschel, AICP (and CV),the Declaration of Daniel L.
3 Wainwright, the Deposition Transcripts, Plaintiffs discovery responses, etc.), the Statement of
4 Undisputed Material Facts, allof the records on filewiththe Court herein, andon suchfurther oraland
5 documentary evidence as may be presented at the hearing on the Motion.
6
Dated: July^, 2018 McCORMlCK, BARSTOW, SHEPPARD,
7 WAYTE & CARRUTH LLP
8
9
Bv:
10 Anthony N. DeMj^
Daniel L. Wainwright
11 Attorneys for Defendant,
QUAIL LAKE COMMUNITY ASSOCIATION
12
61202-00115 5233730.1
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mcCormick. Barstow.
Sheppard, Wayte 8
Carruth LLP DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR
7M7 NORTH FRESNO STREET
FRESNO, CA 93720 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF FRESNO
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Fresno, State of California. My business address is 7647 North Fresno
4 Street, Fresno, CA 93720.
5 On July 24, 2018, I served true copies of the following document(s) described as
DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR
6 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY
ADJUDICATION on the interested parties in this action as follows:
7
Scott E. Spell David McDowell
8 Erik Durow McDowell, Shaw, Garcia & Mizell
Law Office of Scott E. Spell 1655 N. Main St., Suite 370
9 12100 Wilshire Blvd., Suite 1520 Walnut Creek, CA 94596
Los Angeles, CA 90025
10
11 Anisha K. Basi
Laughlin, Falbo, Levy & Moresi, LLP
12 555 12^*^ Street, suite 1900
Oakland. CA 94607
13
14 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and mailing,
15 following our ordinary business practices. I am readily familiar with this business's practice for
collecting and processing correspondence for mailing. On the same day that the correspondence is
16 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.
17
I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is
18 true and correct.
19 Executed on July 24,2018, at Fresno, Califorpia.
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McCormick, Barstow,
Shepparo. wayte &
Carruth LLP
7647 NORTH FRESNO STREET
FRESNO. OA 63720
Preview
1 McCormick, Barstow, Sheppard, Wayte & Carruth LLP 2 Anthony N. DeMaria, #177894 anthony. demaria@mccormickbarstow. com 3 Daniel L. Wainwright, #193486 E-FILED daniel. wainwright@mccormickbarstow. com 7/24/2018 4:20 PM 4 7647 North Fresno Street FRESNO COUNTY SUPERIOR COURT Fresno, California 93720 By: K. Daves, Deputy 5 Telephone: (559)433-1300 Facsimile: (559) 433-2300 6 Attorneys for Defendant, 7 QUAIL LAKE COMMUNITY ASSOCIATION, a California Corporation 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 ADRIAN GUERRERO, Case No. 16CECG03895 {Consolidated with 17CECG01087] 13 Plaintiff, DEFENDANT, QUAIL LAKE 14 V. COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR SUMMARY JUDGMENT 15 QUAIL LAKE COMMUNITY OR, IN THE ALTERNATIVE, MOTION ASSOCIATION, a California Corporation; FOR SUMMARY ADJUDICATION 16 IAIN LEVI OWENS; RICHARD L. OWENS, II, JENNIFER M. OWENS and DOES I to Date: October 31, 2018 17 100, Time: 3:30 p.m. Dept.: 402 18 Defendants. 19 CYPRESS INSURANCE COMPANY, 20 Plaintiff, 21 22 IAIN LEVI OWENS; RICHARD L. OWENS, 23 II; JENNIFER M. OWENS; and DOES 1 to 10, 24 Defendants. 25 26 PLEASE TAKE NOTICE that on October 31, 2018, at 3:30p.m., or as soon thereafter as this 27 matter may beheard inDepartment No. 402 ofthe Fresno County Superior Court, located at 1130 "O" 28 Street. Fresno, CA, Defendant, QUAIL LAKE COMMUNITY ASSOCIATION ("QUAIL LAKE"), McCormick, Barstow, 1 Sheppard. Wayte & CARRUTH LLP DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR 7647 NORTH FRESNO STREET FRESNO. CA 93720 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 will move this Court for an order granting Summary Judgment or, in the alternative. Summary 2 Adjudication as to all of the claims asserted by Plaintiff, ADRIAN GUERRERO, against QUAIL 3 LAKE as more fully described in his December 7, 2016 Complaint for Damages. 4 With respect to QUAIL LAKE, the Complaint asserts only one cause of action (i.e., the First 5 Cause of Action) for "Premises Liability" related to a motor vehicle accident involving Plaintiff and 6 occurring on December 4, 2015 at QUAIL LAKE. 7 The Motion for Summary Judgment/Adjudication, which seeks to dispose ofthe lone cause of 8 action for "Premises Liability") in the Complaint advanced by Plaintiffagainst QUAIL LAKE, will be 9 made on the following grounds/issues: 10 First Cause of Action for "Premises Liability"' 11 (a) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e., "Premises Liability") has no merit because QUAIL LAKE owed no duty to protect 12 Plaintiff from the conduct of IAIN OWENS; 13 (b) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e., "Premises Liability") has no merit because QUAIL LAKE was not "Negligent"; 14 (c) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e., 15 "Premises Liability") has no merit because the area ofthe accident was not a "Dangerous Condition" at QUAIL LAKE; 16 (d) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e., 17 "Premises Liability") has no merit because QUAIL LAKE was NOT on "Notice" ofany "Dangerous Condition" at QUAIL LAKE; and, 18 (e) ADRIAN GUERRERO'S Cause of Action for "Premises Negligence" (i.e., 19 "Premises Liability") has no merit because no act or omission on the part of QUAIL LAKE caused, contributed to, or was a substantial factor in causing any injury to 20 Plaintiff and, therefore, was not a cause of harm to Plaintiff. 21 Alternatively, and in compliance with California Rules ofCourt, Rule 3.1350(b) and California 22 Code of Civil Procedure §437c(f), this moving Defendant seeks, in the alternative. Summary 23 Adjudication as to each of Plaintiffs separate causes of action and/or claims against QUAIL LAKE. 24 This Motion will further be based on this Notice of Motion, the Memorandum of Points and 25 26 Plaintiffs December 7,2016 Complaint for Damages contains a total ofthree causes ofaction. The first cause ofaction is for "Premises Liability" againstQUAIL LAKE and is the subject of thisMotion. The second cause of action is for 27 "Vehicular Negligence" and is asserted against only IAIN LEV! OWENS, RICHARD L. OWENS, II and JENNIFER M. OWENS. The third cause of action is for "Violation of Civil Code §1714.1" and is asserted against only RICHARD L. 28 OWENS, II and JENNIFER M. OWENS. McCormick, Barstow, Sheppard, wayte a Carruth LLP DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR 7647 NORTH FRESNO STREET FRESNO. CA 93720 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION 1 Authorities served and filed herewith, all judicially noticeable documents, the Statement of Evidence 2 (Exhibits"A - ??," e.g., the Declaration of Dirk Poeschel, AICP (and CV),the Declaration of Daniel L. 3 Wainwright, the Deposition Transcripts, Plaintiffs discovery responses, etc.), the Statement of 4 Undisputed Material Facts, allof the records on filewiththe Court herein, andon suchfurther oraland 5 documentary evidence as may be presented at the hearing on the Motion. 6 Dated: July^, 2018 McCORMlCK, BARSTOW, SHEPPARD, 7 WAYTE & CARRUTH LLP 8 9 Bv: 10 Anthony N. DeMj^ Daniel L. Wainwright 11 Attorneys for Defendant, QUAIL LAKE COMMUNITY ASSOCIATION 12 61202-00115 5233730.1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mcCormick. Barstow. Sheppard, Wayte 8 Carruth LLP DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR 7M7 NORTH FRESNO STREET FRESNO, CA 93720 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF FRESNO 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Fresno, State of California. My business address is 7647 North Fresno 4 Street, Fresno, CA 93720. 5 On July 24, 2018, I served true copies of the following document(s) described as DEFENDANT, QUAIL LAKE COMMUNITY ASSOCIATION'S NOTICE OF MOTION FOR 6 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION on the interested parties in this action as follows: 7 Scott E. Spell David McDowell 8 Erik Durow McDowell, Shaw, Garcia & Mizell Law Office of Scott E. Spell 1655 N. Main St., Suite 370 9 12100 Wilshire Blvd., Suite 1520 Walnut Creek, CA 94596 Los Angeles, CA 90025 10 11 Anisha K. Basi Laughlin, Falbo, Levy & Moresi, LLP 12 555 12^*^ Street, suite 1900 Oakland. CA 94607 13 14 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, 15 following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is 16 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. 17 I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is 18 true and correct. 19 Executed on July 24,2018, at Fresno, Califorpia. 20 21 22 23 24 25 26 27 28 McCormick, Barstow, Shepparo. wayte & Carruth LLP 7647 NORTH FRESNO STREET FRESNO. OA 63720