Vizcarra v. Bevmo! Inc.

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There is no dispute that trial in this consolidate action commenced prior to the expiration of the stipulated 5-year date of April 15, 2026. That trial was bifurcated to try certain issues to the court first, does not take this action out of the five-year statute. (In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 253 [“once trial commences, the statute no longer applies, even though the proceedings amount only to a partial hearing;” see also id. at 254 [“In a nonjury case, the swearing of a single witness” is sufficient to “commence” trial].)

Moving parties rely on Sagi Plumbing v. Chartered Constr. Corp. (2004) 123 Cal.App.4th 443, but this case is distinguishable, as it involved a bifurcated trial on completely separate construction projects, while the instant action involves common issues between the first and second phases.

Plaintiffs’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d)(1).)

Plaintiffs shall give notice of this ruling.

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59. Vizcarra v. Defendant/Cross-Complainant/Cross-Defendant Canyon Plaza Bevmo! Inc. LLC’s Motion for Summary Judgment is GRANTED. (Code Civ. Proc. §437c.) 2023- 01348855 A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (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 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(p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [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 [respondent only required to defeat allegations reasonably contained in the complaint].)

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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 the plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co. (1995) 25 Cal.4th at 854-55

In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

Moving Party argues that it does not owe any duty of care since the loading dock where the alleged incident took place was part of the leased premises and Moving Party did not have possession or control, nor knowledge of any dangerous condition, such that it has no duty to Plaintiff.

Moving Party attempts to meet its evidentiary burden by pointing to language and site plans included in the lease between Moving Party and BevMo! that purportedly show the loading dock was part of the leased premises. Specifically, Moving Party points to Lease Section 1.1.17 which defines “Premises” as “certain real property and improvements identified in the BLI, which is more particularly depicted on the Site Plan.” (SSUMF 8) Moving Party then cites to the Site Plans, attached as Exhibit B-1 and B-2 to the lease. (See SSUMF 10-11.)

Absent from Moving Party’s showing is any testimony, affidavit, or other evidence that would permit a trier of fact to deduce from the site plans where the loading dock is located and that it is in fact part of the premises. In other words, the court can’t discern from the evidence where the loading dock is—and therefore can’t discern if it is part of the leased premises.

And other parts of the lease agreement seem to indicate that the parties to the lease intended the loading dock to be excluded from the leased premises, which also raises questions for the court. (See, e.g., Lease Section 1.1.5 [“The Floor Area shall exclude any exterior loading

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dock.”][emphasis added] or Section 5.1. [“Landlord shall make available or cause to be made available throughout the Lease Term such ‘common areas’ (including, but not limited to, parking areas, driveways, truckways, delivery passages, truck-loading areas ...”] [emphasis added]

Moving Party’s evidentiary submission does not demonstrate to the court the facts to support the arguments being made. Moving Party’s argument that it owes no duty as a matter of law fails, as it cannot show that it did not have possession of or a duty to maintain the safety of the loading dock.

Accordingly, the motion is DENIED.

Moving party shall provide notice of this ruling.

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