Judge Audra Mori, Case 20STCV45654 2023-02-27 Tentative Ruling

Plaintiff Marcela Elidet Martinez (“Plaintiff”) filed this action against Defendant Liliana Cruz (“Defendant”) alleging that Defendant physically assaulted and beat Plaintiff in a public parking lot. Plaintiff alleges she was walking with a group of people near Defendant’s husband when Defendant ran toward Plaintiff, screaming insults at Plaintiff, and punched Plaintiff in the face multiple times. The operative Second Amended Complaint alleges causes of action for assault, battery, and intentional infliction of emotion distress.

Plaintiff now moves for summary judgment, or alternatively, summary adjudication, against Defendant. The motion is unopposed.

Plaintiff argues she is entitled to summary judgment because there are no triable issues of material fact concerning Defendant’s unprovoked attack on Plaintiff. Plaintiff avers that the undisputed facts show that Plaintiff meets each element of her causes of action against Defendant and no defense raised by Defendant applies.

Plaintiff requests judicial notice be taken of (1) certain photos purportedly showing Plaintiff’s injuries, (2) a police report dated February 3, 2019, (3) documents seemingly relating to an emergency visit to MemorialCare Long Beach Medical Center, (4) documents depicting certain property damages incurred by Plaintiff, (5) documents titled “Estimate of Surgical Fees,” and (6) a radiology report dated March 3, 2020.

The request is denied as to each item. Plaintiff does not establish that it is proper to take judicial notice of any photos, documents or information offered above. (People v. Maxwell (1978) 78 Cal.App.3d 124, 130 [“The burden is on the party requesting judicial notice to supply the court with sufficient, reliable and trustworthy sources of information about the matter… A court is not required to seek out on its own initiative indisputable sources of information.”]; Ross v. Creel Printing & Fubl'g Co. (2002) 100 Cal.App.4th 736, 744 [“The burden is on the party seeking judicial notice to provide sufficient information to allow the court to take judicial notice.”].)

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.” (CCP §437c(c).) 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 plaintiff moving for summary judgment or summary adjudication bears the initial burden of “prov[ing] each element of the cause of action entitling the party to judgment on that cause of action.” (CCP § 437c(p)(1).) To meet the initial burden of proof, a plaintiff moving for summary judgment or summary adjudication bears the same burden of proof a plaintiff would have at trial. (Aguilar, 25 Cal.4th at 851.) Upon meeting that burden, the burden shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1); see Aguilar, at 853 [“All that the plaintiff need do is to ‘prove[ ] each element of the cause of action.’ ”].)

The elements of a civil battery are (1) the defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person, (2) the plaintiff did not consent to the contact, and (3) the harmful or offensive contact caused damage to the plaintiff. (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.)

As to Plaintiff’s claims against Defendant, “[t]he elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; see also Kiseskey v. Carpe’ters’ Trust for So. Cal. (1983) 144 Cal.App.3d 222, 232 [“The tort of assault is complete when the anticipation of harm occurs.”].)

The elements of a cause of action for intentional infliction of emotiona’ distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.)

In this case, Defendant intentionally assaulted and physically battered Plaintiff with the intent to harm Plaintiff. (Mot. Undisputed Material Facts 3.) Defendant punched Plaintiff in the face several times until Plaintiff began to bleed from her face. (Id. at 1.) As a result of Defendant’s conduct, Plaintiff sustained general and special damages “in an amount to be proved at the time of trial.” (Id. at 11.)

In moving for summary judgment, Plaintiff must prove every component of her claims against Defendants. One component of each of Plaintiff’s causes of action is the amount of damages. (Fluharty, 59 Cal.App.4th at 497 [to establish claim for civil battery, the plaintiff must establish that the offensive touching caused damage]; see Dept. of Industrial Relations v. UI Video Stores Inc. (1997) 55 Cal.App.4th 1084, 1097 [CCP § 437c makes no provision for partial summary judgment as to liability; because issues regarding calculation of damages remained, it was not appropriate to grant summary judgment]; accord. Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106 [A party can “not establish a prima facie entitlement to summary judgment without showing both the fact and the amount of damages.”].) Plaintiff does not identify a specific amount of damages sought in her motion for summary judgment or establish that her damages are capable of exact determination. For instance, Plaintiff asserts she sustained general damages as a result of the incident, but it is well established that there is no prescribed method to calculate awards of general damages. (See Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078-80.) “The law does not prescribe a definite standard or method to calculate compensation for pain and suffering…” (Id. at 1080.)[1]

Although Plaintiff attempts to submits some evidence showing she sustained medical and property damages as a result of Defendant’s attack, Plaintiff does not identify or establish the exact amount of damages to which she is entitled. Rather, Plaintiff asserts the full amount of damages are unknown to her at this time, and Plaintiff is seeking to recover unspecified punitive damages and damages in an amount according to proof at time of trial. (See Mot. Undisputed Material Facts 5, 6, 11, 23, 25.)

Hon. Audra Mori

Judge of the Superior Court

[1] See also Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300, “The difficulty inherent in assessing damages is plainly evident when noneconomic damages such as pain and suffering are at issue: “ ‘One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. [Citation.] In a very real sense, the jury is asked to evaluate in terms of money a determent for which monetary compensation cannot be ascertained with any demonstrable accuracy.’ ” [Citation].”