Judge Kerry Bensinger, Case Number: 22STCV01315, Date: 2023-09-20 Tentative Ruling

On January 11, 2022, Plaintiff, Brodie Stephenson, by, Amber Stephenson, as guardian and mother, filed this wrongful death action against Defendant, Patricia A. Jacobs and nominal defendant Craig Randell (“Mr. Randell”) arising from a June 10, 2020 car accident that killed Plaintiff’s father Matthew Ryan Randell (“Decedent”).¿ In the complaint, Plaintiff identifies Mr. Randell as a nominal defendant because Mr. Randell has asserted claims based on Decedent’s death. Mr. Randell filed a complaint against Jacobs on June 7, 2022.¿ The cases were consolidated on September 19, 2022.¿

On June 30, 2023, Plaintiff filed this motion for summary judgment. Mr. Randell opposes and Plaintiff replies.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860.) (Internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Exhibit 1: As will be discussed, if the Plaintiff requests judicial notice, the Court anticipates overruling the objection.[1]

Mr. Randell is correct that prior to granting a request for judicial notice pursuant to Evidence Code section 452, a party must comply with Evidence Code section 453 and request the Court take judicial notice. (See Evid. Code, § 452, et. seq.) For example, although the custody decree is a record of a court of a state of the United States for which this Court may take judicial notice (see Evid. Code, § 452, subd. (d)), Plaintiff must specifically make that request. “A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material (emphasis added).” (Cal. Rules of Court, rule 3.1306(c).) A party requesting judicial notice of materials must comply with California Rules of Court, rule 3.1306. (Super. Ct. L.A. County, Local Rules, rule 3.8.)

The principal issue to be decided is whether the custody decree issued in the Eighth Judicial District Court of the State of Nevada is entitled to full faith and credit in the State of California. Crediting the custody decree, and the proposition that Plaintiff is Decedent’s son, would establish that Plaintiff alone has standing to pursue wrongful death claims against Defendant. The Court previously held that the custody decree should be given full faith and credit when the Court denied Mr. Randell’s motion to compel DNA testing of Plaintiff.

Mr. Randell opposes the motion because the relief being sought – a ruling that Plaintiff is the sole successor in interest – is not stated in the Complaint. “The pleadings delimit the scope of the issues on a summary judgment motion. [Citation.] A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings. [Citation.] Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3.)

The Complaint alleges four causes of action: Wrongful death (Negligence); Survivor’s Action (Negligence); Survivor’s Action (Gross Negligence); Negligence per se. None of these causes of action seek to foreclose Mr. Randell’s rights as successor or conversely to establish Plaintiff’s as the sole successor in interest. The Complaint does not include a cause of action for declaratory relief.

Mr. Randell raises the interesting point: how can Plaintiff obtain summary judgment on the issue he wants – that he is the sole successor in interest -- based upon the four causes of action pled in the Complaint? Plaintiff fails to respond. The Court will hear from counsel.

In his opposition, Mr. Randell seeks to continue the hearing on the motion because Mr. Randell intends to file a motion for leave to amend his complaint. Mr. Randell wants to add a survivorship cause of action (but counsel does not identify the nature of the cause of action) and a claim for reimbursement of burial expenses. Because the nature of the survivorship cause of action is unidentified, the Court will also hear from counsel. However, Mr. Randell’s request to continue the hearing is procedurally deficient because counsel failed to include a declaration in support of the request. (Code Civ. Proc., § 437c, subd. (h).)[2]

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] It is certainly fair to say Mr. Randell has been on notice that Plaintiff seeks the admission of Exhibits 1-6 and does so based upon Evidence Code sections 452 and 453. Mr. Randell has had sufficient opportunity to respond. Nonetheless, the Court will require Plaintiff to separately file a request for judicial notice.

[2] Had such a declaration been filed, perhaps, it would have included information about the survivorship cause of action.