NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS FILED BY LILLIAN J. CAPSHINOFF, JUSTIN LEE HOLLOWAY - Motion August 05, 2014 (2024)

Case

IN RE: CHUNG WEI WANG

Jul 31, 2024 |(43) Unlimited Other Petition (PJ Assignment) |24-CIV-04719

Case

16285913

Aug 15, 2024 |16285913

Case

JCCP 5314

Aug 12, 2024 |JCCP 5314

Case

16242195

Aug 12, 2024 |16242195

Case

24-CIV-04970

Aug 14, 2024 |24-CIV-04970

Case

16283768

Aug 15, 2024 |16283768

Case

16263861

Aug 14, 2024 |16263861

Case

RE: MARJAN GHILARDUCCI

Jul 30, 2024 |Elizabeth K. Lee |(43) Unlimited Other Petition (PJ Assignment) |24-CIV-04701

Case

24-CIV-05057

Aug 15, 2024 |24-CIV-05057

Ruling

DAVID WILLIAMS vs JOHNATHAN WEBER, et al

Aug 12, 2024 |24CV00661

24CV00661WILLIAMS v. WEBER MOTION TO BE RELIEVED AS COUNSEL The unopposed motion to be relieved as counsel filed by Alivia Abreu is granted as itcomplies with California Rules of Court, Rule, 3.1362. Ms. Abreu is directed to submit anupdated proposed order for the court to sign with the correct upcoming hearing dates. Theproposed order before the court indicates a future date of July 5, 2024.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

HAMPTON vs MAGAVE CARE, INC.

Aug 12, 2024 |CVRI2401762

Petition to Compel Arbitration byHAMPTON vs MAGAVE MAGAVE CARE, INC., NAHSCVRI2401762CARE, INC. HOLDING, INC., NAHS SOUTHEAST,INC.Tentative Ruling:This is an elder neglect action. Plaintiff Peter May Hampton (“Hampton” or “Plaintiff”), by andthrough her Power of Attorney Kim Ricks, alleges that she received negligent care and serviceswhile a resident at Woodcrest Post Acute & Rehabilitation (the “Facility”), a skilled nursing facility,owned and operated by defendants Magave Care, Inc., NAHS Holding, Inc. and NAHS Southeast,Inc. (“Defendants”). Plaintiff alleges she was admitted to the facility with a complex medicalhistory, causing her to be at high risk for skin breakdown, bedsores and/or pressure ulcers anddependent on Defendants for her basic needs. Due to Defendants’ alleged neglect, Plaintiffdeveloped pressure ulcers to her buttocks, gangrenous infection of her toes, urinary tractinfections, and a fractured leg after a fall incident. On April 4, 2024, Plaintiff filed the Complaintalleging 1) negligence; 2) violations of the Elder and Dependent Adult Civil Protection Act (Welf.& Inst. Code § 15600 et. seq.); and 3) violations of resident safety (Health & Safety Code §1430(b).Defendants now petitions the Court to compel Plaintiff to arbitrate her claims pursuant to anarbitration agreement that her daughter and power of attorney, Kim Ricks (“Ricks”), signed uponPlaintiff’s admission. Plaintiff opposes, arguing that the agreement is not properly authenticatedand is procedurally and substantively unconscionable. In the Reply, Defendants argue that Ricksconcedes she signed the agreement and the agreement is not unconscionable.Plaintiff moves for trial preference within 120 days pursuant to CCP § 36, arguing that preferenceis necessary to prevent prejudice based on her age of 78 and her current medical diagnoses.Defendants oppose, arguing that the Court lacks jurisdiction because this matter is subject toarbitration, Plaintiff has not demonstrated a dire health condition and setting a trial within 120 dayswill violate Defendants’ due process rights.Analysis:I. Petition to Compel ArbitrationUpon the petition/motion of a party to an agreement to arbitrate, the court must grant a petition tocompel arbitration unless it finds: no written agreement to arbitrate exists; the right to compelarbitration has been waived; grounds exist for rescission of the agreement; or litigation is pendingthat may render the arbitration unnecessary or create conflicting rulings on common issues. (CCP§ 1281.2; 9 USC § 2.) A proceeding to compel arbitration is in essence a suit in equity to compelspecific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14Cal.3d 473, 479.) The petition/motion to compel must set forth the provisions of the writtenagreement and the arbitration clause verbatim, or such provisions must be attached andincorporated by reference. (CRC 3.1330; see also Condee v. Longwood Mgmt. Corp. (2001) 88Cal.App.4th 215, 218-19.) This rule does not require the petitioner to authenticate the agreementor do anything more than allege its existence and attach a copy. (Condee, supra, 88 Cal.App.4that 218-19.) The burden then shifts to the opposing party to demonstrate the falsity of the purportedagreement. (Id. at 218-19.)“In ruling on a petition to compel arbitration, the trial court may consider evidence on factual issuesrelating to the threshold issue of arbitrability . . . . Parties may submit declarations when factualissues are tendered with a motion to compel arbitration.” (Engineers & Architects Assn. v.Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) In the summary proceedings ona motion to compel arbitration, “the trial court sits as a trier of fact, weighing all the affidavits,declarations, and other documentary evidence, as well as oral testimony received at the court’sdiscretion, to reach a final determination.” (Engalla v. Permanente Medical Group, Inc. (1997) 15Cal.4th 951, 972.) 1A. Federal Arbitration ActDefendants argue the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. (“FAA”) applies. The FAAgenerally governs arbitration in written contracts involving interstate commerce. (9 U.S.C. §2.) Toassure uniform results as to arbitrability of disputes subject to the FAA, conflicting state law ispreempted under the Supremacy Clause. (Southland v. Corp. v. Keating (1984) 465 U.S. 1, 12.)Here, whether the FAA applies is not really at issue because Defendants do not contend that any1There is a strong public policy in favor of arbitration agreements.” (Blake v. Ecker (2001) 93 Cal.App.4th 728,741.) “California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act,including a presumption in favor of arbitrability and a requirement that an arbitration agreement must be enforced onthe basis of state law standards that apply to contracts in general.” (Engalla, supra, 15 Cal.4th 951, 971–972.)Given the policy favoring arbitration, “doubts concerning the scope of arbitrable issues are to be resolved in favor ofarbitration.” (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323;see also Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.)state law is preempted by the FAA. Both the FAA and the California Arbitration Act require theexistence of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and Code Civ. Proc., §1281.2) Even if the FAA applies, courts apply California contract law todetermine whether the parties formed a valid agreement to arbitrate their dispute. (Avery v.Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59-60.) Thus, the analysis is thesame regardless of whether the FAA applies.B. Existence of Arbitration AgreementDefendants produced an Arbitration Agreement signed by Plaintiff’s legal representative anddaughter Kim Ricks on August 10, 2023. (Declaration of Colin M. Harrison (“Harrison Dec.”), Exs.A, B.) The Arbitration Agreement provides, in pertinent part, that any dispute between the partiesthat “relates to the provision of care, treatment and services the Facility provides to [Plaintiff],including any action for injury or death arising from negligence, torts, intentional tort and/orstatutory causes of action (including all California Welfare and Institutions Code sections, allCalifornia Business and Profession Code sections, Health and Safety Code section 1430), andall other statutory claims provided to Plaintiff by the Facility are to be determined by submissionto binding arbitration . . ..”Plaintiff does not dispute that the Arbitration Agreement covers the claims in this action, butargues that Defendants failed to properly authenticate the Arbitration Agreement and that it isunconscionable. As set forth above, the moving party need not authenticate the agreement or doanything more than allege its existence and attach a copy to the petition to compel arbitration.(Condee, supra, 88 Cal.App.4th at 219.) Defendants met this requirement. Thus, the burden shiftsto Plaintiff to prove the falsity of the purported agreement. (Ibid.) Plaintiff concedes that theArbitration Agreement was signed by Kim Ricks as her power of attorney on August 10, 2023.(Declaration of Kim Ricks (“Ricks Dec.”), ¶¶ 3, 11.) Plaintiff failed to show the ArbitrationAgreement is not authentic. The preponderance of the evidence shows the existence of anarbitration Agreement. The question becomes whether the agreement is unconscionable.C. Gateway Issue of ArbitrabilityDefendants argue that the issues of arbitrability and enforceability must be decided by thearbitrator, not the Court, pursuant to the delegation clause in the Arbitration Agreement. Thegeneral rule is that the courts decide disputes about arbitrability unless the parties agree todelegate the issue of enforceability of arbitrability to the arbitrator. (Aanderud v. Superior Court(2017) 13 Cal.App.5th 880, 891-892.) To be effective, the language of a delegation provision“must be clear and unmistakable” and there must be no contract defense to the delegation clause,such as fraud, duress, or unconscionability. (Id. at 892, 894.) “The ‘clear and unmistakable’ testreflects a heightened standard of proof that reverses the typical presumption in favor of thearbitration of disputes. (Id. at 892.) Unless the agreement expressly states the arbitrator mustdecide unconscionability, the court must decide it. (Ajamian v. Cantor CO2e, LP (2012) 203Cal.App.4th 771, 783-788.)Here, the Arbitration Agreement provides: “The arbitrator, and not any federal, state, or local courtor agency, shall resolve all disputes, including without limitation, any disputes regarding themaking, execution, enforceability, voidability, revocability, unconscionability, severability, scope,arbitrability, interpretation, waiver, duress, preemption or any other defense to the validity orenforceability of this Arbitration Agreement, as well as resolve the Parties’ underlying disputes,as it is the Parties’ intent to completely avoid the court system and resolve disputes without anyjudge or jury.” (Harrison Dec., Ex. A, ¶ 4.1 (emphasis added).) This language is clear andunmistakable. Plaintiff does not dispute that the delegation clause is included in the ArbitrationAgreement, or otherwise provide any argument in opposition to the arbitrability issue. Plaintiffdoes not contend fraud or duress. Plaintiff argues that the Arbitration Agreement as a whole isunconscionable, but does not specifically address the delegation clause.To the extent Plaintiff suggests the delegation clause is revocable because the entire ArbitrationAgreement is unconscionable, the argument fails. Unconscionability has both a procedural and asubstantive element, “the former focusing on oppression or surprise due to unequal bargainingpower, the latter on overly harsh or one-sided result.” (Ibid.) Both elements must be presentbefore a contract provision will be rendered unenforceable based on unconscionability. (Kinneyv. United Healthcare Services, Inc. (1999) 70 Cal.App.4th 1322, 1329.) A “sliding scale” is invokedwhereby the more procedurally oppressive the arbitration clause is, the less evidence ofsubstantive unconscionability is required to warrant the conclusion that the agreements toarbitrate are unenforceable.” (McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th76, 91.) Importantly, “[w]hen determining whether a delegation clause is unconscionable, anyclaim of unconscionability must be specific to the delegation clause. (Aanderud, supra, 13Cal.App.5th at 895; citing Rent-A-Center, W., Inc. v. Jackson (2010) 561 U.S. 63, 73.)Procedural Unconscionability of Delegation Clause. Here, Plaintiff’s legal representative, KimRicks, states in her declaration that she was presented with a lengthy admission packet in August2023 through DocuSign, and the Facility representative failed to explain what the individualdocuments were or that the Arbitration Agreement was included in the packet. (Ricks Dec., ¶¶ 8,9.) At the time, she felt pressured to make a quick decision to admit her mother to the Facility forher continued care due to her mother’s health condition and lack of other options for skillednursing care. (Id. at ¶¶ 6-8.) She was told the documents she was to electronically sign wererequired to have her mother admitted to the Facility. (Id., ¶ 10.)However, Ricks’ testimony is directly contradicted by the declaration of Ashley Pena, theAdmissions Coordinator for the Facility who signed the Arbitration Agreement on behalf of theFacility, and the declaration was signed the same day as the Arbitration Agreement. (HarrisonDec., Ex. B.) Pena states that she explained the Arbitration Agreement to Plaintiff and Ricks, thatsigning the Arbitration Agreement is optional, is not a condition for admission to the facility, signingthe Arbitration Agreement means that if there is a dispute it will be resolved through Arbitration,not in Court with a judge and/or a jury, and that a signature on the Arbitration Agreement can berevoked within 30 days. (Id., ¶¶ 1-3.)Furthermore, the Arbitration agreement expressly states that the resident and/or the personexecuting the agreement “understands that its execution is not a precondition to receiving medicaltreatment, care, services and/or for admission to the Facility and is not a requirement to continueto receive medical treatment, care and services at the Facility” and clearly states in red, capitalbold-face: “NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANYISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU AREGIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THISCONTRACT.” (Harrison Dec., Ex. A, ¶ 12.2.) “When a person with the capacity of reading andunderstanding an instrument signs it, [s]he may not, in the absence of fraud, coercion orexcusable neglect, avoid its terms on the ground he failed to read it before signing it.” (Bolanosv. Khalatian (1991) 231 Cal.App.3d 1586, 1590.) Plaintiff failed to present any evidence she wasnot able to read or understand the Arbitration Agreement or presented any evidence of fraud,coercion or excusable neglect by Defendants.Substantive Unconscionability of Delegation Clause. While the Arbitration Agreement may haveinvolved some degree of adhesion and thus, procedural unconscionability, Plaintiff does notexplain how the delegation clause itself is substantively unconscionable. All of Plaintiff’sarguments regarding substantive unconscionability relate to the Arbitration Agreement as a whole(i.e., that it is unfairly one-sided as to the types of disputes that are arbitrable, prevents Plaintifffrom obtaining heightened statutory remedies and limits discovery) and are inapplicable to thedelegation clause. Because Plaintiff has not established that the delegation clause isunconscionable, the arbitrator should determine any further issues of enforceability, includingunconscionability of the entire agreement. GRANT.D. StayUnder CCP § 1281.4, where the court orders arbitration, it shall, upon motion of a party, stay theaction or proceeding until an arbitration is had or until such earlier time as the court specifies. Thecourt stays the proceedings pending the arbitrator’s determination of arbitratability and/or pendingarbitration.Ruling:GRANT the petition to compel arbitration and stay the action pending arbitration.

Ruling

HOUSER, YVETTE vs SELECT EDUCATION GROUP LLC

Aug 12, 2024 |CV-24-002521

CV-24-002521 – HOUSER, YVETTE vs SELECT EDUCATION GROUP LLC – Defendant’s Motion for an Order Approving Pro Hac Vice Admission of Mark A. Althoff Pursuant to California Rules of Court, Rule 9.40 – GRANTED, unopposed.Good cause existing, the application for the Pro Hac Vice Admission of Mark Olthoff to California to appear as Counsel herein is hereby granted. (CA Rules of Court, Rule 9.40)

Ruling

FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)

Aug 13, 2024 |FCS057573

FCS057573Motions for ContemptTENTATIVE RULING:Petitioner’s “motions” for contempt are denied.No affidavit of the facts constituting any contempt has been presented to thecourt. The filing of a sufficient affidavit is a jurisdictional prerequisite to acontempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court(1951) 103 Cal.App.2d 512, 541.) Page 1 of 1

Ruling

LONGORIA vs RIVERSIDE COUNTY SHERIFF'S DEPARTMENT

Aug 12, 2024 |CVRI2204798

MOTION TO CONSOLIDATE ON 3RDAMENDED COMPLAINT FOR OTHERLONGORIA VS RIVERSIDEPERSONAL INJURY/PROPERTYCVRI2204798 COUNTY SHERIFF'SDAMAGE/WRONGFUL DEATH TORTDEPARTMENT(OVER $25,000) OF CARLOSLONGORIA BY CARLOS LONGORIATentative Ruling:DENY, without prejudice.The GUY matter is currently set for a hearing on the Motion for Summary Judgment on January24, 2025. In addition, the parties have expressed an interest in private mediation in the GUYmatter. For these reasons, this motion is procedurally premature. The court denies the motionwithout prejudice, and without reaching the merits of consolidation at this time.

Ruling

RAMIREZ vs GLICK

Aug 14, 2024 |CVRI2305037

MOTION TO BE RELIEVED ASCVRI2305037 RAMIREZ VS GLICK COUNSEL FOR MARTHA ARIASRAMIREZTentative Ruling: Plaintiff’s Counsel’s Motion to be Relieved is denied for insufficientdeclaration. Counsel’s declaration consists of rote recitation of a specified California Rules ofCourt.3.MOTION TO COMPEL FURTHERRESPONSES TO SPECIALINTERROGATORIES, SET ONE, FROMPLAINTIFFS, CINTHIA ESTRADAMILLS VS NAVARROCVRI2305615 DUARTE AND LIZ GUADALUPESANDOVALCHAVEZ DIAZ, AND FORATTORNEY'S FEES AND/ORMONETARY SANCTIONS BY SANDRATERESA MILLSMOTION TO COMPEL RESPONSESTO FORM INTERROGATORIES, SETONE, FROM PLAINTIFFS, CINTHIAMILLS VS NAVARRO ESTRADA DUARTE AND LIZCVRI2305615SANDOVAL GUADALUPE CHAVEZ DIAZ, AND FORATTORNEY'S FEES AND/ORMONETARY SANCTIONS BY SANDRATERESA MILLSTentative Ruling: Plaintiffs Mills’ Motion to Compel Further Responses is granted. PlaintiffsCinthia Estrada Duarte and Liz Guadalupe Chavez Diaz are ordered to serve verified responses,without objections, to Form Interrogatories, Set One, and Special Interrogatories, Set One, nolater than 30 days.Plaintiffs Cinthia Estrada Duarte and Liz Guadalupe Chavez Diaz are ordered to pay reducedmonetary sanctions in a reasonable reduced aggregate (for both motions) amount of $1,120 (2hours plus filing fees).A party may file a motion compelling further answers to interrogatories if it finds that the responseis inadequate, incomplete, or evasive, or an objection in the response is without merit or toogeneral. (C.C.P., §§ 2030.300.)As to the Special Interrogatories, on April 5, 2024, Mills Plaintiffs served Duarte and Diaz withSpecial Interrogatories, Set One via e-mail. On May 8, 2024, Duarte and Diaz served unverifiedresponses with objections. An unverified response is ineffective as it is the equivalent of providingno response at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) On May 10,2024, Duarte and Diaz served their verifications. As the verifications were [seemingly admittedly]untimely, the objections were waived. Mills Plaintiffs are entitled to verified responses, withoutobjections.As to the Form Interrogatories, on April 9, 2024, Mills Plaintiffs served Duarte and Diaz with FormInterrogatories, Set One via e-mail. Mills Plaintiffs’ counsel declares he never received anyresponses. (Goldberg Decl. filed 8/7/24.) In opposition, counsel for Duarte and Diaz stateresponses were served, but failed to attach any to the declaration of counsel in opposition. (SeeGarcia Decl., filed 8/1/24, ¶ 4.) Under the circ*mstances, Mills Plaintiffs’ counsel is morepersuasive. As no responses were served, the Court grants the motions.As to sanctions, the court shall impose a monetary sanction against any party who unsuccessfullymakes or opposes a motion to compel further responses unless that party acted with substantialjustification or other circ*mstances make the imposition of a sanction unjust. (C.C.P., §§2030.290(c).) In the present case, Duarte and Diaz provided unverified responses with objectionsto Special Interrogatories and no responses to Form Interrogatories. Counsel vaguely declaresthere were “client contact issues.” However, this is not substantial justification for failing to provideverified responses without objections to the special Interrogatories, or respond to the Forminterrogatories entirely. Mills Plaintiffs request for $1000 and $980 for the motions ($500/hour) isexcessive given that the motions are nearly identical and could have been combined into one.

Ruling

JANET MCDONALD ET AL VS. NORTH STAR PLUMBING AND FIRE PROTECTION INC. ET AL

Aug 12, 2024 |CGC22599633

Matter on the Law & Motion calendar for Monday, August 12, 2024, Line 3. PLAINTIFF JANET MCDONALD, NICOLE MCDONALD, DEREK MCDONALD AND STEPHEN MCDONALD AS TRUSTEE's MOTION TO CONSOLIDATE ACTIONS OF CASE(S) CGC-23-609395 WITH CASE CGC-22-599633. Off calendar. An ex parte application to consolidate these actions was granted on July 22, 2024. =(302/RBU)

Ruling

ADAM DOLEWSKI VS DOLLAR TREE STORES, INC., ET AL.

Aug 13, 2024 |21STCV11207

Case Number: 21STCV11207 Hearing Date: August 13, 2024 Dept: S27 1. Background Facts Plaintiff, Adam Dolewski filed this action against Defendants, Dollar Tree Stores, Inc., Berkshire Bakersfield, LLC, and Brentwood Group, LLC for premises liability and negligence arising out of an incident that occurred at a Dollar Tree location in Long Beach. Plaintiff alleges Defendants negligence caused him to be confined in a freezer for a substantial period of time, which caused him injuries and damages. Defendants filed a cross-complaint against Hill Phoenix, Inc. and Hill Phoenix WIC, LLC, the entities that manufactured the subject freezer. Thereafter, Plaintiff amended his complaint to include a claim for manufacturing defects against Hill Phoenix. 2. Motion for Summary Judgment (Defendants, Dollar Tree Stores, et al.) a. Burdens on Summary Judgment Summary judgment is proper if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim cannot be established because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. (Ibid.) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence&. Aguilar, supra, 25 Cal.4th at 865-66, [A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidenceas through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action. (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (disproving) an essential element of the plaintiff's cause of action. (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103. Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) b. Evidentiary Objections Plaintiff filed objections with his opposition papers. A ruling on the motion does not turn on a ruling on his objections, and the Court declines to rule on them. CCP §437c(q). Defendant filed objections with its reply papers. Most of the objections do not affect the analysis of the motion, and the Court declines to rule on them. CCP §437c(q). Objection 12 is overruled. Objections to a separate statement are not proper; objections must be to evidence, not to a separate statement. CRC 3.1354. c. Analysis The Court is faced with a relatively discreet legal issue for determination on this motion. The Court must determine where the line should be drawn between comparative fault and an unforeseeable situation. It is clear that a jury, faced with the facts of this case, will find Plaintiff largely responsible for his own situation. Plaintiff admits he knew he was walking into a freezer and understood it was a freezer. Undisputed fact 55. Most of Plaintiffs theories of liability, such as the theory that Defendant was obligated to have an employee check the freezer every night before leaving, seek to impose a duty the Court is not comfortable imposing and finds legally untenable. The Court is concerned, however, about disputed fact 54. Defendant contends it is undisputed that That includes trying to look for the plunger, even though he knew what it was and how to operate it based on his prior experience. First, it is not clear what this fact means. What includes? In any event, the fact is supported by Plaintiffs deposition, Exhibit C to the moving papers, page 201, wherein Plaintiff was asked what he did to get out of the freezer and testified he banged on the door but did not do anything else. Nothing in page 201 of Plaintiffs testimony establishes he knew what the plunger was or how to use it based on his prior experience. This may be present somewhere else in his testimony, but it is not on page 201 of his deposition transcript. Additionally, Plaintiff provides evidence that the plunger was blocked by a dolly laden with bags of ice, which would need to be moved to use the plunger. Plaintiff supports this contention with video footage and Andrea Espinals testimony. Defendant, in reply, argues that the video footage was taken AFTER Plaintiff was released from the freezer, so it is not clear whether the plunger was blocked when Plaintiff was in the freezer, or whether things were moved once he was discovered. The Court has reviewed Espinals testimony and finds that she testified, at page 135 of the transcript, that the U-Boat was in the place where it is usually kept by the store. Thus, a reasonable juror could find that the U-Boat was in the location seen on the video when Plaintiff entered the freezer. That said, Defendant provides evidence that the employees knew where the plunger was and knew how to use it even if there was a U-boat loaded with ice in front of the plunger. Fact 19. The legal issue, therefore, is whether a landowner has a duty not to increase the danger to someone who has found himself in a place where he should not be. Facts 5-8 establish Plaintiff entered an unmarked stockroom that a reasonable person would conclude was for employee use. Additionally, Plaintiff does not dispute fact 30, which establishes he asked to use a restroom and was told the restrooms were closed due to COVID; thus, he was not in the stockroom to look for a restroom. Importantly, fact 11, which is undisputed, establishes Plaintiff knew the things in the stockroom signaled it was a stockroom. Fact 13 establishes the freezer is marked FREEZER, and this fact is undisputed. The Court has reviewed the law concerning dangerous condition of public property and finds it is helpful in addressing this issue. Notably, dangerous condition of public property is more, not less, difficult to establish than shopkeeper liability. Case law explains that property is not dangerous (so as to expose the entity to liability) if it is safe when used with due care and the risk of harm is created only when a foreseeable user fails to exercise due care. Gov.C. § 830(a); Fuller v. Department of Transp. (2019) 38 Cal.App.5th 1034, 1042-1043. However, the fact that the plaintiff, or a third party who caused or contributed to the plaintiff's injury, failed to use due care does not itself absolve the government entity of liability. The status of a condition as dangerous for purposes of the statutory definition does not depend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care. Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768. See also Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1459, holding, the fact the particular plaintiff may not have used due care is relevant only to his or her comparative fault and not to the issue of the presence of a dangerous condition. The Court finds it was reasonably foreseeable that someone other than an employee could be in the freezer and need to access the emergency exit. Thus, blocking the exit could be seen as creating a dangerous condition in the freezer. All other issues ultimately go to Plaintiffs comparative fault, and the summary judgment motion is denied. 3. Motion for Summary Judgment (Defendant, Hill Phoenix) a. Parties Positions Hill Phoenix, Inc. and Hill Phoenix WIC, LLC (Hill Phoenix) move for summary judgment on the complaint and cross-complaints filed against them, contending (a) Defendants owed Plaintiff no duty because Plaintiffs injuries were not foreseeable, and (b) they did not cause Plaintiffs injuries. Plaintiff opposes. He contends the expert opinion of Gregory R. Hora establishes the freezer was defectively designed, and the defective design caused his injuries, which were foreseeable. Defendants, in reply, contend Horas opinions are subject to objection and not admissible. They contend that, even if Horas opinions are considered, his opinions do not establish foreseeability and/or causation. b. Evidentiary Objections Plaintiff submitted objections with his opposition papers. The first objection to the Martin declaration is sustained; the second objection is overruled. Plaintiffs objections to the Rosen declaration are overruled. Defendants submitted objections with their reply papers. The objection to the entire Hora declaration is sustained. The Court declines to rule on the remaining objections, as they are moot. c. Duty The question of the existence and scope of the defendant's duty is one of law to be decided by the court, not by a jury, and therefore it generally is amenable to resolution by summary judgment. Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 358. The Court finds the foreseeability of Plaintiffs injuries was so remote that Defendants did not owe him a duty to prevent those injuries. While the Court found, above, that it was reasonably foreseeable that SOMEONE could end up in the freezer, ending up in the freezer would only be dangerous if that person could not get out of the freezer. The evidence showed triable issues concerning the placement of an obstacle in front of the escape mechanism in the freezer, which would render inability to get out of the freezer foreseeable. It is not, however, foreseeable to the freezer manufacturer that someone would place an obstacle in front of the escape mechanism. The Court finds imposing such a duty goes too far. The Court notes that Plaintiffs expert opines that a variety of additional safety measures should have been implemented to render the freezer safe. Defendants objections to Plaintiffs expert testimony are sustained, as Plaintiffs expert does not establish he is a competent expert in freezer manufacturing standards. Regardless, while there may have been additional safety measures that could have possibly been implemented when designing the freezer, it remains undisputed that a very specific set of events had to unfold in order for Plaintiff to end up in the freezer overnight, and that specific set of events was not foreseeable to a person designing a freezer. The Court therefore declines to impose a duty to design and manufacture a freezer with additional safety features in this case. The motion for summary judgment is granted. Defendants are ordered to give notice. Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

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