Summary Judgment

Affirming a summary judgment, this opinion finds that the city was immune from liability under Gov. Code 831.4 on plaintiff's claim that he tripped over a wire cable hanging between two posts on either side of the entrance to a path down to a lake, designed to keep vehicles from using the path.  The path was used for the recreational… Read More

Describing but not resolving several areas of ambiguity and conflicting authority in applying H&S Code 1799.110, this decision holds instead that a nurse anesthetist and trauma unit nurse lacked the specialized knowledge required to opine on the standard of care applicable to an intensive care unit neurosurgeon deciding whether a severe traumatic brain injury requires immediate surgical intervention, whether that… Read More

Summary judgment on plaintiff's discrimination in employment claims was properly granted because he failed to exhaust his administrative remedies with the FEHA and EEOC.  His administrative complaint mentioned entirely different grounds (sex and whistleblower retaliation by his supervisor) than his court complaint (sexual harassment, race, immigration status and retaliation  by coworkers).  Employees satisfy the administrative exhaustion requirement if their court… Read More

Plaintiff, a guest in defendant's hotel, fell and hurt herself when the handheld shower head came apart in her hand.  This decision affirms a summary judgment for defendant because (a) plaintiff failed to raise a triable issue of fact as to whether defendant had actually knew or had reason to suspect that the shower head was defective or dangerous and… Read More

On appeal, we will not presume from a silent record that a trial court meant to sustain evidentiary objections when it did not expressly so rule.  Nor will we undertake the duty to rule on evidentiary objections in the first instance on appeal.  Objections not expressly ruled upon are deemed overruled where they go to material issues of fact.  While… Read More

Plaintiff tried to refinance her Wells Fargo home loan with another lender but that effort was thwarted by a fraudulent third party's lien on the property.  Plaintiff contends that Wells Fargo should have helped her remove the fraudulent lien, but instead it started foreclosure proceedings on her loan.  She filed a Chapter 13 bankruptcy to avoid the foreclosure and listed… Read More

Reversing a summary judgment for defendant, this decision holds that it is question of fact for the jury whether a CDCR peace officer assigned to culinary duties at a prison was acting within the scope of his employment in engaging in a high speed chase of another car on his way to work after the occupants of the other car… Read More

This decision affirms a summary judgment for defendant in a slip and fall case based on the trivial defect doctrine.  The discontinuity between the sidewalk and PG&E's manhole cover was less than an inch vertically.  There was nothing that concealed the discontinuity of the pavement from view.  The fact that the sidewalk was on a steep hill did not make… Read More

Echoing Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, this decision states that a separate statement should contain only the facts material to the challenged element(s) of a claim or defense.  Other background facts need not and should not be set out in the separate statement.  The decision also states that the nonmoving party… Read More

Effective in 2019, Gov. Code 12923 "clarified" the law regarding hostile work environment sexual harassment claims.  The section states that summary judgment should rarely be granted on such claims.  In addition, it provides that even a single incident can be sufficient to support a hostile work environment claim "if the harassing conduct has unreasonably interfered with the plaintiff’s work performance… Read More

Reversing a summary judgment for defendant in this breach of contract suit, the Court of Appeal found the parties' brief signed napkin agreement to be enforceable despite some ambiguities and terms left for later determination.  It was not too indefinite to enforce or too indefinite to indicate agreement on essential terms.  Parol evidence was properly admitted to construe the ambiguous… Read More

This decision affirms a summary judgment for defendant in a suit by the heirs of a driver killed in a head-on collision triggered by the presence of a deer on the highway.  Defendant was entitled to design immunity under Gov. Code 830.6.  The design of the highway was causally linked to the accident.  Caltrans approved the planned design of the… Read More

A defendant may raise unpleaded affirmative defenses in opposition to the plaintiff's summary judgment motion so long as the plaintiff is given adequate notice and an opportunity to respond.  See Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367; Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 11.  The court may consider unpleaded affirmative defenses, if the complaint alleges facts supporting… Read More

This decision reverses a summary judgment in favor of the defendant employer against the plaintiff employee nurse who sued individually and under PAGA for violation of Labor Code sections on rest and meal breaks and payment of all wages due on termination.  The employer failed to meet its burden of proving plaintiff's claims were time barred.  While she may not… Read More

This en banc opinion reverses a summary judgment the district court had granted the University of Arizona in a Title IX sex harassment claim based on a sexual assault by a male student on a football scholarship against a woman student in off-campus housing.  To obtain damages under Title IX for student-on-student harassment, a plaintiff must show (1) that the… Read More

A party may appeal from denial of its summary judgment motion by stipulating to entry of judgment after and based on the denial of the summary judgment motion and making clear that it is doing so only for the purpose of appealing the denial of summary judgment--because there was no full record developed at trial that could be said to… Read More

While a district court may convert a motion to dismiss into a summary judgment motion in the parties submit evidence in support of the motion, FRCP 12(d), the district court cannot sua sponte convert a summary judgment motion into a motion to dismiss.  Here, defendant didn't move to dismiss for lack of lack of Article III standing but raised the… Read More

Although acknowledging the issue still remains open, it decides the review the trial court's rulings on evidentiary objections on a summary judgment motion under the abuse of discretion standard which it claims is the majority position both before and after Reid v. Google, Inc. (2010) 50 Cal.4th 512 (which highlighted but did not decide the issue). Read More

On plaintiff's first appeal, the Court of Appeal reversed a summary judgment for defendant.  On remand, the case was tried to a judge who ruled in defendant's favor and plaintiff again appealed.  Plaintiff claimed that HSBC violated Penal Code 632 and 632.7 by intentionally recording her confidential personal calls to and from her daughter who, at the time, was working… Read More

Plaintiff sued Disney for common law misappropriation of his story idea in making its animated file Zootopia.  This decision affirms a summary judgment for Disney.  Plaintiff had no direct evidence of copying.  It did not produce evidence sufficient to allow a reasonable inference of copying either.  The allegedly copied elements of plaintiff's story idea were not so unique as to… Read More