Judge: Loren G. Freestone, Case: 37-2022-00015473-CU-PO-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00015473-CU-PO-CTL RACHEL GRANT AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MARK BOGACHEK VS KNYPER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Gregory Knyper and North County Scuba Center Inc.'s (NCSC) unopposed motion for summary judgment as to the first amended complaint filed by Rachel Grant (as special administrator of the estate of Mark Bogachek) is granted.

The complaint alleges a single survival cause of action for negligence (ROA #20). The elements of negligence are well-settled: 'duty, breach of duty, causation, and damages.' (Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 834.) A party moving for summary judgment bears an initial burden of production showing that one or more of the plaintiff's elements cannot be established. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 853–855.) A party moving for summary judgment may satisfy his initial burden based on facts that have been deemed admitted. (See Gribin Von Dyl & Associates (1986) 185 Cal.App.3d 653, 662–663; Barnett v. American-Cal Medical Services (1984) 156 Cal.App.3d 260, 266.) Here, Defendants submit a declaration from Knyper (ROA #64), who attests that Bogachek was not a student of his or NCSC on the day of the incident, nor was he assisting in any type of training or supervisory capacity. Rather, Knyper declares that Bogachek was essentially conducting his own separate and completely independent underwater dive at the time of the incident. This evidence negates the existence of duty and breach.

Defendants also submit a declaration from medical expert Karen Van Hoesen M.D. (ROA #65), who opines that Defendants did not cause or contribute to Bogachek's death. Rather, Dr. Hoesen explains that Bogachek had significant atherosclerotic and hypertensive cardiovascular disease, suffered a sudden cardiac arrest while on his dive, and under no scenario could he have survived. This evidence negates the existence of causation and damages.

Defendants further rely on the following facts, which were deemed admitted (ROA #80, 83): (1) Defendants 'did not commit negligence against Mark Bogacheck'; (2) Defendants 'did not commit gross negligence against Bogachek'; (3) Defendants 'did not breach any duty of care owed to Bogachek'; (4) Defendants were not 'a substantial factor in causing harm to Bogachek'; (5) Defendants were not 'the legal cause of harm to Bogachek'. These facts negate the claim entirely.

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3050497  33 CASE NUMBER: CASE TITLE:  RACHEL GRANT AS SPECIAL ADMINISTRATOR OF THE ESTATE  37-2022-00015473-CU-PO-CTL The burden therefore shifts to Grant to raise a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at pp. 850–851.) Grant did not file an opposition (ROA #84) and therefore necessarily failed to meet her burden.

The motion for summary judgment is therefore granted.

Defendants are directed to submit a proposed judgment within 10 days.

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