(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)
In Defendant next states that “Plaintiff has visited Universal Mall on multiple occasions.” Query: Without proving that Plaintiff had traversed over the same section of defective sidewalk prior to the accident, and knew of its existence before the accident, what relevance does this fact have to the Defendant’s argument that the defect was trivial? The answer is: None.
As explained above, Defendant’s Statement of Undisputed Facts consists, in part, of misstatements of the facts regarding the extent and nature of the defective condition of Defendant’s property which caused Plaintiff’s accident. The Statement of Undisputed Facts also includes alleged facts which are irrelevant to Defendant’s Motion for Summary Judgment. Because Defendant’s Statement of Undisputed Facts and supporting evidence is insufficient to support its motion, the motion should be denied.
DEFENDANT’S MOTION SHOULD BE CONTINUED OR DENIED BECAUSE DISCOVERY HAS NOT BEEN COMPLETED
Pursuant to Cal. Code of Civil Procedure §437c(h), if it appears from an affidavit submitted in opposition to a motion for summary judgment that the facts essential to justify opposition may exist, but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make an order that is just ….
An Answer was not filed until July 23, 2009 by Macy’s West, and the order the amended complaint was not signed and filed by the Court until August 10, 2009.