Summary Judgment

The trial court erred in granting the defendant gun shop summary adjudication of plaintiff gun shot victim's negligence per se claim based on sale of the gun to an 18-year-old who did not possess a valid, unexpired hunting license.  See Pen. Code 27510.)  Though "valid, unexpired" was ambiguous as to whether it included a valid license before its effective date,… Read More

Disagreeing with Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, this decision holds that the California Supreme Court has not abandoned its requirement that for an order to be appealable under the collateral order doctrine, the order must direct payment of money or performance of an act.  That requirement remains a restriction on collateral order appeals… Read More

This decision holds that the trial court erred in granting defendant summary judgment against plaintiff's claim to quiet title to a railroad easement across plaintiff's property benefiting defendant's parcel.  Plaintiff claimed the railroad had abandoned the easement.  Abandonment depends on cessation of use of the easement for permitted purposes and the easement owner's intent not to use the easement in… Read More

The trial court properly granted summary judgment against the plaintiff insureds who sought coverage under their named peril property insurance policy for loss of their frozen embryos due to a failure of the refrigeration unit of the embryo storage company.  The insureds could not prove that the embryos had suffered physical damage.  The storage company refused to say, and the… Read More

The trial court properly granted defendant property owner summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689.  Plaintiff was injured while working as a contractor's employee, fixing the building's HVAC system.  Plaintiff failed to raise a triable issue of fact under the Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 exception to Privette.  Plaintiff fell through the ceiling… Read More

An electrician working on a lengthy project at a farm caught a disease caused by a fungus that spreads from bird feces particularly if the feces are mixed with soil over an extended period.  Following Sarti v. Salt Creek, Ltd. (2008) 167 Cal.App.4th 1187 and distinguishing Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, this decision holds that… Read More

The trial court improperly entered summary judgment for defendant on class claims that it violated H&S Code 1374.72, which requires parity of treatment for mental illness as for physical illness, and Civ. Code 51 by treating persons with mental disabilities less well than those with physical disabilities.  Plaintiffs' evidence raised triable issues of fact as to whether Kaiser's reimbursement and… Read More

In response to Smith v. Superior Court (L'Oreal USA, Inc.) (2006) 39 Cal.4th 77, the Legislature enacted Lab. Code 201.3(b), which provides that a temporary worker hired by a staffing company and working on assignment for another employer is not terminated for purposes or receiving a final pay check when the temporary assignment ends, but only when the staffing agency… Read More

Though the ministerial exception to employment discrimination laws is in the nature of an affirmative defense that the defendant must allege and prove, the trial court did not err in allowing the defendant in this case to raise the exception for the first time by a summary judgment motion after the close of discovery.  Plaintiff couldn't show any prejudice because… Read More

This decision affirms a summary judgment for the insurer against a business interruption insurance claim by a casino due to COVID-19.  The decision holds that while it may be enough to overcome a demurrer for the complaint to allege simply that COVID-19 altered the surfaces of the plaintiff's business property, at the summary judgment stage much more is required to… Read More

This decision affirms a summary judgment on plaintiff's antitrust claim against a competing fast fashion retailer which had refused to buy from clothing vendors unless they quit selling to plaintiff.  Plaintiff failed to present evidence of a horizontal agreement among the clothing vendors to not sell to plaintiff.  A vertical agreement between defendant and each vendor was not a per… Read More

Summary judgment for defendant employer was reversed in this disability discrimination in employment case.  Defendant tentatively decided to lay plaintiff off before she became disabled, but didn't follow through with that decision until after plaintiff suffered a disabling injury.  Plaintiff produced sufficient evidence to raise a triable issue of fact as to whether defendant's concern with plaintiff's disability led to… Read More

The court that wrote Inns-by-the-Sea v. California Mutual Ins. Co. (2021) 71 Cal.App.5th 688 affirms summary judgment for the defendant insurer in the COVID-19 case.  While the plaintiff introduced sufficient evidence to show that COVID-19 airborne particles might have caused physical damage to the motel, the plaintiff couldn't show that its business losses were due to that contamination rather than… Read More

Summary judgment was properly granted to defendant in this case.  Plaintiff's decedent was employed by an independent contractor defendant hired for highway repairs.  The contract with the contractor expressly delegated maintaining worker safety to the contractor.  That the defendant retained authority to approve work quality and acceptability and the manner of performance of the work did not change the applicability… Read More

This decision reverses a summary judgment in favor of the owner and prime contractor and against the plaintiff, who worked for a demolition subcontractor.  Plaintiff was injured by an unknown assailant in a walkway that the owner and prime had left unfenced to allow neighborhood residents access to a bus stop.  The owner and prime exercised actual control over security… Read More

Estate of Cornelious (1984) 35 Cal.3d 461 remains good law.  Under Probate Code 7540(a), a child is conclusively presumed to be issue of the man married to the child's mother, so long as the two were cohabiting at the time of conception and of birth.  Such a child is not allowed, at least for inheritance purposes, to prove that he… Read More

A summary judgment motion must be filed at least 75 days (plus added days for other than personal service) before the hearing date which must be at least 30 days before the scheduled trial date.  However, if a summary judgment motion is properly filed and served 105 days (plus added days for non-personal service) before trial, the trial court must… Read More

This decision holds that the trial court erred in granting one defendant summary judgment based on a statute of limitations defense.  The argument and evidence on summary judgment addressed when plaintiff discovered the contracts signed by an independent contractor were void under This decision holds that the trial court erred in granting one defendant summary judgment based on a statute… Read More

This decision holds that the trial court erred in granting one defendants summary judgment based on plaintiff's failure to timely file a government claim.  Plaintiff alleged facts giving supporting its arguments that the defendant had expressly and impliedly waived the government claims defense.  The fact that plaintiff filed a late government claim did not defeat the implied waiver argument since… Read More

The trial court is not required to consider grounds for summary judgment that the movant's papers do not identify, but the court may, in its discretion, consider an additional ground if an evidentiary basis for the additional ground appears in the summary judgment record, and (2) the opponent has notice of and an opportunity to respond to the additional ground. … Read More