jose duran , Plaintiff, v. security paving company, inc., Defendant.

Case No.: BC700043

Hearing Date: June 19, 2019

[TENTATIVE] order RE:

defendant’s MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Jose Duran (“Plaintiff”) alleges that he sustained injuries when he fell into a hole at a construction site. Defendant Security Paving Company, Inc. (“Defendant”) moves for summary judgment on Plaintiff’s complaint for negligence and premises liability. The unopposed motion is granted.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . There is a triable issue of material fact if, and 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 Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)

DISCUSSION

To state a claim for negligence, Plaintiff must show that Defendant had a duty to Plaintiff; Defendant breached that duty; and the breach caused damages to Plaintiff. To state a claim for premises liability, Plaintiff must demonstrate that Defendant failed to exercise ordinary care in its management of the premises. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

In its order of February 25, 2019, this Court deemed admitted matters specified in requests for admissions Defendant propounded on Plaintiff. Per that order, Plaintiff has admitted, among other matters, that Plaintiff is solely at fault for his injuries. (Declaration of Christine J. Gracco, Exhibits B, C.) Accordingly, Defendant has shown that Defendant is not liable to Plaintiff. Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Defendant is liable. As Plaintiff has not opposed this motion, Plaintiff cannot meet that burden. Accordingly, the motion is granted.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant shall provide notice and file proof of such with the Court.

DATED: June 19, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court