Case Number: BC567316??? Hearing Date: October 21, 2016??? Dept: 92
MICHELLE CHEUNG,
Plaintiff(s),
vs.
ARCADIA UNIFIED SCHOOL DIST., et al.,
Defendant(s).
Case No.: BC567316
[TENATATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENTPlaintiff, Michelle Cheung filed this action against Defendant, Arcadia Unified School District for damages arising out of a fall from the second story window of Defendant?s high school. At this time, Defendant moves for summary judgment on the complaint, contending it is entitled to judgment as a matter of law due to (a) Plaintiff?s factually devoid discovery responses, (b) lack of dangerous condition, (c) lack of causation, and (d) design immunity.
Defendant?s first argument is that it is entitled to judgment as a matter of law due to Plaintiff?s factually devoid discovery responses. A defendant moving for summary judgment or summary adjudication must introduce admissible evidence in order to shift the burden of proof to the plaintiff. There are two ways for the moving party to make out the necessary prima facie case. A defendant may present evidence that ? if uncontradicted ? constitutes a preponderance of evidence that plaintiff cannot establish an essential element of its case. This approach, which requires offering evidence that negates a key element of the plaintiff?s cause of action, is known as the ?tried and true? approach. See, e.g., Kids? Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.
Alternatively, a defendant may present circumstantial evidence that the plaintiff does not now possess and cannot reasonably obtain the evidence needed to establish one or more elements of a claim. This is known as the ?no evidence? approach and is described in Aguilar v, Atlantic Richfield Company (2001) 25 Cal.4th 826, at 854. A defendant making a ?no evidence? motion must introduce admissible evidence (by declaration or otherwise) that, in response to the full panoply of discovery devices (request for production, interrogatories, depositions etc.), the plaintiff has produced factually devoid responses sufficient to support an inference that the plaintiff cannot make out a prima facie case on an element of its case. In addition, a defendant making a ?no evidence? motion must also establish that, by the time the case comes up for trial, the plaintiff ?cannot reasonably expect to obtain? the evidence necessary to raise a triable issue of fact on the issue. Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App. 4th 64, 83.
Defendant provides evidence that it asked, via special interrogatories, for facts and witnesses to support Plaintiff?s contention that the defects in the premises caused her injuries and/or that the district failed to ensure the premises were not in a dangerous condition, and Plaintiff responded by indicating she lacks such information. Fact 2.
The foregoing is sufficient to meet the moving burden to show Defendant is entitled to judgment as a matter of law due to Plaintiff?s factually devoid discovery responses. The burden therefore shifts to Plaintiff to raise a triable issue of material fact concerning notice. Any opposition to the motion was due on or before 10/07/16. As of 10/18/16, the Court has not received opposition to the motion. Plaintiff has therefore necessarily failed to meet her burden to raise a triable issue of material fact, and the motion is granted.