Defendant Alta Services, Inc.’s (“Alta”) Motion for Summary Judgment is denied.
Alta’s evidentiary objections are overruled. Plaintiffs Mindy and Ken Blackburn’s objections to Paragraph 5 (2:7-8), Paragraph 6 (2:9-10), and Paragraph 9 (2:17) of the Brown Declaration, are overruled. Plaintiffs’ remaining evidentiary objections are sustained.
“[F]rom commencement to conclusion, the 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.” (Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. ( Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].) Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
Plaintiffs allege three causes of action against Alta: (1) premises liability, (2) negligence, and (3) dangerous condition of public property (Govt. Code, §§ 830, 835 et seq.).
The elements of negligence are (1) the legal duty to use due care; (2) a breach of such legal duty; (3) causation; and (4) resulting damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “Liability for negligent conduct may only be imposed where there is a duty of care owed by the defendant to the plaintiff or to a class of which the plaintiff is a member.” (Ibid., quoting J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803.)
Premises liability is a form of negligence. The owner of premises is under a duty of care to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 16190.) The elements of premises liability are (1) the defendant owned, leased, occupied, or controlled the property; (2) the defendant was negligent in the use or maintenance of the property; (3) the plaintiff was harmed; and (4) the defendant’s negligence was a substantial factor in causing the plaintiff’s harm. (CACI No. 1000.) A person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own. (CACI no. 1002; see Contreras v. Anderson (1997) 59 Cal.App.4th 188, 198-199.) In order to establish a claim for premises liability, a plaintiff must also demonstrate: (1) a condition on the property created an unreasonable risk of harm; (2) the defendant knew or, through the exercise of reasonable care, should have known about it; and (3) the defendant failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition. (CACI no. 1003.)
Government Code section 835 provides in relevant part: “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either
(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
(Govt. Code, § 835.)
Alta’s Motion is based upon the assertion that it had no control of the new sidewalk, as its scope of the work with regard to the sidewalk was the demolition of the old sidewalk, and that it had no involvement in the construction of the new sidewalk. The court notes that although Brown’s Declaration indicated that Alta’s contract with Cuesta Construction was attached to his declaration, it was not attached to the copy filed with the court. Even after Plaintiffs pointed out in their evidentiary objections that Alta failed to attach the contract, Alta took no corrective action.
Even assuming arguendo that Alta has met its initial burden, there are triable issues of material fact. The court notes that the asserted contract between Alta and Cuesta was attached as Exhibit 13 to the Declaration of Cervantes-Chambers, in support of Plaintiffs’ Opposition. This contract is entered into between Alta Contracting and Cuesta, not Alta Services, Inc. Assuming that this is the contract between Defendant Alta and Cuesta, the contract provides for not only demolition, but also grading. Based upon the contract and discovery responses provided by Plaintiffs and by the other Defendants (Irvine Company, Cuesta Properties, Mission Landscape Companies, Inc.), there are triable issues of fact as to the scope of Alta’s work, whether Alta performed work in conformity with its contract with Cuesta, and causation. Accordingly, the motion for summary judgment is denied.
Plaintiffs shall give notice of the ruling.