KITCHELL v. HOTEL SOLARES, et al.

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 28, 2026 TIME: 8:30 A.M.

22658 provides for damages, including subdivision (d) which states that “[t]he owner of a vehicle removed from private property pursuant to subdivision (a) may recover for any damage to the vehicle resulting from any intentional or negligent act of a person causing the removal of, or removing, the vehicle.” There are further penalties and damages permitted against a tow company for damage to the vehicle and excessive charges. There is no basis to impose a writ of mandate directive on a private company under the facts alleged. Petitioner cites Beverly v. Anderson (1999) 76 Cal.App.4th 480 in his opposition; however, in Beverly, unlike this case, the defendant was a public agency.

According to the TAP, the reason why petitioner wants the information is to engage in a post-storage hearing pursuant to Vehicle Code section 22852. As pointed out by respondent, this section applies when an authorized member of a public agency directs the storage of a vehicle. There are no allegations that a public agency is involved in the towing of petitioner’s vehicle; therefore, there would be no reason or right to a post-storage hearing.

Petitioner filed an “objection to the separately calendared demurrer hearing and request for relief”, arguing the demurrer is inconsistent with the procedure proscribed in Code of Civil Procedure section 1094. However, petitioner did not file a Code of Civil Procedure section 1094 writ, so this objection is irrelevant and is overruled.

Petitioner has tried three times without success to amend his petition to state a claim, therefore demurrer is sustained without leave to amend.

No. 24CV02633

KITCHELL v. HOTEL SOLARES, et al.

PLAINTIFF’S MOTION FOR NEW TRIAL

Plaintiff brings this motion pursuant to Code of Civil Procedure sections 657, 658, and 659 after the court granted defendants’ motion for summary judgment. Plaintiff asserts that a new trial is warranted because the court failed to rule on her Code of Civil Procedure section 437c, subdivision (h) request and ruled on the motion for summary judgment without ruling on this request. (MPA at p. 7.) As discussed below, the motion is denied.1

1 This court must hear the motion because Judge Carter is unavailable. (Code Civ. Proc., § 661; Kelly v. Sparling Water Co. (1959) 52 Cal.2d 628, 633.)

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 28, 2026 TIME: 8:30 A.M.

I. RELEVANT BACKGROUND

On September 17, 2024, plaintiff filed this action against defendants for personal injury, premises liability and general negligence. Plaintiff asserts that while using the bathroom at defendants’ hotel she fell due to the low height of the toilet seat. Defendants Hotel Solares and Niir Shahadat filed a motion for summary judgment on January 23, 2026, set to be heard on April 16, 2026. The motion was supported by declarations from defendants’ expert Yomi Agunbiade, Pravin Patel (owner of Hotel Solares), and defendants’ counsel.

On March 25, 2026, plaintiff applied ex parte for an order continuing the hearing on the motion for summary judgment, asserting that she had not had the opportunity to conduct essential discovery, citing Code of Civil Procedure section 437c, subdivision (h). Plaintiff stated a continuance was necessary because she had not been able to depose defendants’ expert or Patel and because defendants served deficient discovery responses. (Ex Parte App., March 25, 2026, pgs. 4-5.) Plaintiff stated the inability to complete the deposition of defendants’ declarants was a circumstance beyond her control.

On March 26, 2026, the court denied the request. (Order, March 26, 2026.)

On April 16, 2026, the Court permitted plaintiff’s late-filed opposition to be considered and continued the hearing for one week. This opposition also included a renewed request for a continuance of the hearing pursuant to Code of Civil Procedure section 437c, subdivision (h). After reviewing all the pleadings filed in connection with the motion for summary judgment, the Court found that plaintiff failed to establish a triable issues of material fact supporting her claims.

On June 2, 2026, plaintiff filed a notice of intention to move for a new trial. Plaintiff maintains that a new “trial” is called for because the Court did not rule on plaintiff’s “timely and preserved section 437c(h) request.” (Memorandum of Points and Authorities (“MPA”) at p. 8.) Plaintiff argues her ex parte request was denied without explanation and her renewed request in her opposition to the motion for summary judgment (and at oral argument) were not ruled upon.

In opposition, defendants maintain that the Court ruled once on the ex parte application and had no obligation to rule on the request again.

II. DISCUSSION

Code of Civil Procedure section 437c, subdivision (h) provides “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 28, 2026 TIME: 8:30 A.M.

motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

Here, plaintiff applied ex parte seeking a continuance to conduct discovery. Defendants opposed the application. The Court denied the request, stating “[e]x parte request for continuance of motion for summary judgement is denied.” Under the written order is the judge’s signature and a stamp with her name. Section 437c, subdivision (h) does not contain any specific requirements for an order denying or granting an ex parte application.

Plaintiff cites Fadeef v. State Farm General Ins. Co. (2020) 50 Cal.App.5th 94, for the proposition that, “[t]he trial court did not rule on the motion for continuance either at the hearing or in its written order. The court simply did not exercise its discretion to determine whether a continuance was warranted and on what terms. A trial court's failure to exercise discretion is itself an abuse of discretion.” (Fadeeff v. State Farm General Ins. Co., 50 Cal.App.5th 94, 104.) Unlike the court in Fadeef, the Court here did rule on plaintiff’s request. Therefore, the Court does not find Fadeef applicable.

Plaintiff argues that when she renewed her requests for continuance via her late-filed opposition and orally at the hearing, the Court did not rule on them. The statute permits a party to request a continuance either via ex parte motion OR before the date the opposition of the response to the motion is due. Plaintiff made her motion, via ex parte application, and it was denied. The Court does not find that the statute requires the court to entertain an unlimited number of requests for continuance under section 437c(h). Further, plaintiff never brought a motion for reconsideration pursuant to Code of Civil Procedure section 1008.

As an alternative argument, plaintiff contends that the Court’s ruling on the motion for summary judgment was “against the law because defendants failed to negate all theories of dangerous condition.” (MPA at p. 9.) Presumably this refers to Code of Civil Procedure section 657, subdivisions (6) – insufficiency of evidence and (7) – error in law. There was sufficient evidence presented by defendants to support the court’s ruling, granting defendants’ motion for summary judgment. Plaintiff failed to establish any disputed material facts.

The motion is denied.