Judge: Loren G. Freestone, Case: 37-2022-00015473-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  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) 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.

Preliminary Matters NCSC's evidentiary objections (ROA #109): Objection nos. 1–9 are sustained.

Analysis 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, NCSC submits 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.

NCSC also submits a declaration from medical expert Karen Van Hoesen M.D. (ROA #65), who opines that NCSC 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.

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3097517  42 CASE NUMBER: CASE TITLE:  RACHEL GRANT AS SPECIAL ADMINISTRATOR OF THE ESTATE  37-2022-00015473-CU-PO-CTL NCSC further relies on the following facts, which were deemed admitted (ROA #80, 83): (1) NCSC 'did not commit negligence against Mark Bogacheck'; (2) NCSC 'did not commit gross negligence against Bogachek'; (3) NCSC 'did not breach any duty of care owed to Bogachek'; (4) NCSC were not 'a substantial factor in causing harm to Bogachek'; (5) NCSC were not 'the legal cause of harm to Bogachek'. These facts negate the claim entirely.

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.) Based on the timing of her attorneys substituting out of the case, and over NCSC's objection, Grant was given a two-month continuance to prepare an opposition.

(ROA #99.) Upon review of the opposition (ROA #100–101), Grant has not raised a triable issue of material fact.

Preliminarily, regardless of what her evidence may show, Grant cannot avert summary judgment in light of the facts that have been deemed admitted. Those facts are conclusively deemed as true and fatal to her claim. (See Gribin, supra, 185 Cal.App.3d at pp. 662–663; Barnett, supra, 156 Cal.App.3d at p. 266.) In any event, the only evidence submitted in opposition to the motion is the Declaration of Rachel Grant.

As set forth above, NCSC's evidentiary objections to the declaration and exhibits thereto are sustained.

(See All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 960 ['[I]t is axiomatic that the party opposing summary judgment must produce admissible evidence raising a triable issue of fact.

This requirement is black letter law.']; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 ['Only admissible evidence is liberally construed in deciding whether there is a triable issue'].) Conclusion The motion for summary judgment is therefore granted.

NCSC is directed to submit a proposed judgment within 10 days.

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