Judge Lynne M. Hobbs, Case Number: 21STCV07608, Date: 2024-02-20 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV07608, Date: 2024-02-20 Tentative Ruling

Case Number: 21STCV07608 Hearing Date: February 20, 2024 Dept: 30

DORIS STAUB-GASSER, et al. vs KUN WO TAM

TENTATIVE

Plaintiff Kenneth Horn’s motion for summary adjudication is DENIED. Defendant is ordered to give notice.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar v. Atlantic Richfiend Co. (2001) 25 Cal. 4th 826, 843.)

Once the moving party has met that burden, section 437c shifts the burden to the opposing party to show that there is a triable issue of material fact as to the cause of action. If the opposing party cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal. App. 4th 463, 467.)

When deciding whether to grant summary judgment, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi, 159 Cal. App. 4th at 467.)

Discussion

Plaintiff moves for summary adjudication of Defendant’s 10 affirmative defenses, arguing that he is entitled to summary adjudication as Defendant has no facts to support any of these affirmative defenses.

To meet his burden on summary adjudication, Plaintiff primarily relies on Defendant’s responses to form interrogatories. On June 13, 2022, Plaintiffs served their second set of Form Interrogatories, and asked interrogatory No. 15.1: “(a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”

The defense answered on July 15, 2022. Defendant’s response to Form Interrogatory No. 15.1 stated that:

Presently, this responding party has no facts to support this affirmative defense. This defense was pled in an abundance of caution in the event discovery reveals such facts. (Emphasis added.)

(Plaintiff’s Exhs. C-D.)

At the time that Defendant’s response to Form Interrogatories was served, the defense had subpoenaed records from at least 11 medical providers, propounded 29 specially prepared interrogatories to each plaintiff, demanded production of 15 categories of documents from each plaintiff, propounded a set of form interrogatories to each plaintiff, was provided the identity and sworn statement from a third party witness, took the depositions of both plaintiffs, and subjected each of them to a Code of Civil Procedure §2034 defense medical examination. (Kadin Decl., ¶ 13.)

A party moving for summary judgment or summary adjudication must introduce admissible evidence in order to shift the burden of proof to the opposing side. There are two ways for the moving party to make out the necessary prima facie case. A moving party may present evidence that – if uncontradicted – constitutes a preponderance of evidence that the opposition cannot establish an essential element of its case. This approach, which requires offering evidence that negates a key element of the other's cause of action, is known as the “tried and true” approach. (See, e.g., Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.)

Alternatively, a moving party may present circumstantial evidence that the opposition does not now possess and cannot reasonably obtain the evidence needed to establish one or more elements of a claim. This is known as the “no evidence” approach and is described in Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 854. A party making a “no evidence” motion must introduce admissible evidence (by declaration or otherwise) that, in response to the full panoply of discovery devices (request for production, interrogatories, depositions etc.), the opposition has produced factually devoid responses sufficient to support an inference that the opposition cannot make out a prima facie case on an element of its case. In addition, a moving party making a “no evidence” motion must also establish that, by the time the case comes up for trial, the opposition “cannot reasonably expect to obtain” the evidence necessary to raise a triable issue of fact on the issue. (Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App. 4th 64, 83.)

Here, Plaintiff does not show that he propounded the full panoply of discovery available on Defendant, and that the responses remained deficient. Plaintiff submits only evidence of some of his form interrogatories propounded on Defendant; there is no evidence submitted by Plaintiff of other written discovery served on Defendant -- such as requests for production, or special interrogatories -- or any other form of discovery such as a deposition. Further, Plaintiff has not shown that by the time the case comes up for trial, Defendant cannot reasonably expect to obtain the evidence necessary, as Defendant served these responses in July of 2022. As such, the responses are stale.

Nor has Plaintiff offered any evidence of his own in support of his motion for the vast majority of the affirmative defenses. (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454.) As to all of the affirmative defenses, Plaintiff has not negated each element of the affirmative defenses with undisputed facts. Therefore, the motion for summary adjudication is denied as to all of the affirmative defenses on this basis.

Lastly, Plaintiff also moves for summary adjudication on the issue of Doris Staub-Gasser’s comparative negligence against Defendant. However, Doris dismissed her case against Defendant on June 14, 2023. As such, the motion as to this issue is denied as moot.

Conclusion

Accordingly, Plaintiff’s motion for summary adjudication is DENIED.