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L&B;Real Estate v. Superior Court of Los Angeles11/23/1998
he affidavit, concluded that testimony from another case does not provide such assurance. (Gatton, supra, 64 Cal.App.4th at pp. 694-696.) We agree.
Subdivision (a) of Evidence Code section 1292 requires unavailability and more before testimony can be admitted at a trial. L&B;made no showing that the witnesses who testified during the criminal trial are unavailable, and a section 1292 objection was lodged by real party. Summary judgment is based on all of the evidence set forth in the papers "except that to which objections have been made and sustained." (ยง 437c, subd. (c).) The trial testimony submitted by L&B;in support of its summary judgment motion was inadmissible under Evidence Code section 1292, subdivision (a). Because this was the only proffered evidence tending to show that the decedent was on L&B;s premises to participate in an attempted robbery, we conclude that L&B;failed to show that it did not owe a duty of care to the decedent.
IV. DISPOSITION
The petition for writ of mandate is denied. The temporary stay is vacated. Petitioners to bear the costs of this petition.
BOREN, P.J.
We concur:FUKUTO, J. & NOTT, J.
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