Judge: Michael P. Linfield, Case: 21STCV18589, Date: 2022-08-26 Tentative Ruling

The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.

Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.

Case Number: 21STCV18589    Hearing Date: August 26, 2022    Dept: 34

SUBJECT:                 Plaintiff Marcus McDaniels’ Motion for Summary Adjudication Against Jeremy Byk

Moving Party:          Plaintiff Marcus McDaniels

Resp. Party:             Defendant Jeremy Byk

Plaintiff Marcus McDaniels’ Motion for Summary Adjudication is GRANTED as to the following affirmative defenses in Defendant Jeremy Byk’s Answer:

·                    Second Affirmative Defense: Active Negligence

·                    Third Affirmative Defense: Comparative Fault of Plaintiff

·                    Fourth Affirmative Defense: Proportionate Fault of Others

·                    Fifth Affirmative Defense: Proposition 51

·                    Sixth Affirmative Defense: Apportionment and Contribution

·                    Seventh Affirmative Defense: Assumption of the Risk

·                    Eighth Affirmative Defense: Failure to Mitigate Damages

·                    Ninth Affirmative Defense: No Proximate Cause: Comparative Fault of Plaintiff

·                    Eleventh Affirmative Defense: Intervening Cause

·                    Twelfth Affirmative Defense: Statute of Limitations

·                    Thirteenth Affirmative Defense: Laches

·                    Fourteenth Affirmative Defense: Waiver and Estoppel

·                    Fifteenth Affirmative Defense: Unclean Hands

·                    Seventeenth Affirmative Defense: Labor Code

·                    Eighteenth Affirmative Defense: Independent Causes

·                    Nineteenth Affirmative Defense: Unavoidable Incident or Condition

·                    Twentieth Affirmative Defense: Superseding Cause

·                    Twenty-First Affirmative Defense: Non-Substantial Factor

·                    Twenty-Fifth Affirmative Defense: Defense of Others

·                    Twenty-Eighth Affirmative Defense: Opinion

·                    Twenty-Ninth Affirmative Defense: Public Interest

Summary adjudication is DENIED as to Defendant Byk’s Tenth Cause of Action as to the causation of Plaintiff’s damages.

I.           BACKGROUND

On May 18, 2021, Plaintiff Marcus McDaniels filed a complaint against Defendant Jeremy Byk alleging the following causes of action:

1.           Defamation

2.           Assault

On July 20, 2021, Byk answered McDaniels’ Complaint.

On June 9, 2022, McDaniels moved the Court for summary adjudication against Byk on the following affirmative defenses:

1.           “McDaniels is entitled to summary adjudication against Byk on his second affirmative defense of Active Negligence, because Active Negligence is not an affirmative defense to assault or defamation.

2.           McDaniels is entitled to summary adjudication against Byk on his third affirmative defense of Comparative Negligence, because Comparative Negligence is not a defense to intentional torts such as assault or defamation.

3.           McDaniels is entitled to summary adjudication against Byk on his fourth affirmative defense of Proportionate Fault of Others, because Proportionate Fault of Others is not a defense to intentional torts.

4.           McDaniels is entitled to summary adjudication against Byk on his fifth affirmative defense of Proposition 51, because Proposition 51 does not apply to intentional torts.

5.           McDaniels is entitled to summary adjudication against Byk on his sixth affirmative defense of Apportionment and Contribution, because Apportionment and Contribution is not a defense to intentional torts.

6.           McDaniels is entitled to summary adjudication against Byk on his seventh affirmative defense of Assumption of Risk, because Assumption of Risk is not a defense to intentional torts.

7.           McDaniels is entitled to summary adjudication against Byk on his eighth affirmative defense of Mitigation of Damages, because there is no evidence that McDaniels failed to mitigate his damages.

8.           McDaniels is entitled to summary adjudication against Byk on his ninth affirmative defense of Comparative Negligence, because Comparative Negligence is not a defense to intentional torts, such as assault or defamation.

9.           McDaniels is entitled to summary adjudication against Byk on his tenth affirmative defense, because there is no evidence that McDaniels’ damages were caused by any party other than Defendant.

10.       McDaniels is entitled to summary adjudication against Byk on his eleventh affirmative defense of Intervening Cause, because Intervening Cause is not by itself an affirmative defense; in any event, there is no evidence of an intervening event or cause that caused McDaniels’ damages.

11.       McDaniels is entitled to summary adjudication against Byk on his twelfth affirmative defense of Statute of Limitations, because McDaniels’ lawsuit was filed before the running of the statute of limitations for both assault and defamation.

12.       McDaniels is entitled to summary adjudication against Byk on his thirteenth affirmative defense of Laches, because laches does not apply to McDaniels’ claims for damages, and because there is no evidence that McDaniels unreasonably delayed in filing this lawsuit.

13.       McDaniels is entitled to summary adjudication against Byk on his fourteenth affirmative defense of Waiver and Estoppel, because there is no evidence in support of either waiver or estoppel.

14.       McDaniels is entitled to summary adjudication against Byk on his fifteenth affirmative defense of Unclean Hands, because Unclean Hands is not a defense to assault or defamation.

15.       McDaniels is entitled to summary adjudication against Byk on his seventeenth affirmative defense of Workers Compensation Exclusivity, because neither the assault or defamation “arise out of Plaintiff’s employment” and “[Plaintiff’s] injuries are not a risk reasonably encompassed within the compensation bargain.”

16.       McDaniels is entitled to summary adjudication against Byk on his eighteenth affirmative defense of Intervening Cause, because Intervening Cause is not by itself an affirmative defense; even if it was, there is no evidence of an intervening event that caused McDaniels’ damages.

17.       McDaniels is entitled to summary adjudication against Byk on his nineteenth affirmative defense of Unavoidable Incident of Condition, because Unavoidable Incident or Condition is not a defense to intentional torts.

18.       McDaniels is entitled to summary adjudication against Byk on his twentieth affirmative defense of Superseding Cause, because there is no evidence of an intervening event occurring after Byk’s assault and defamation, let alone an event “so highly extraordinary as to be unforeseeable” as to absolve Byk of liability.

19.       McDaniels is entitled to summary adjudication against Byk on his twenty-first affirmative defense, because “Non-Substantial Factor” is not an affirmative defense.

20.       McDaniels is entitled to summary adjudication against Byk on his twenty-fifth affirmative defense of Defense of Others, because there is no evidence that Byk was acting to defend a third party.

21.       McDaniels is entitled to summary adjudication against Byk on his twenty-eighth affirmative defense of Opinion, because Byk’s statements are statements of fact.

22.       McDaniels is entitled to summary adjudication against Byk on his twenty-ninth affirmative defense of Public Interest, because McDaniels is not a public official.” (Motion, p. 1:9—3:13.)

On August 12, 2022, Byk opposed McDaniels’ motion for summary adjudication.

On August 19, 2022, McDaniels’ replied to Byk’s opposition.

II.        ANALYSIS

A.          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. Atlantic 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.) When a plaintiff seeks summary judgment or adjudication, the plaintiff must produce admissible evidence on each element of each cause of action on which judgment is sought. (CCP § 437c(p)(1).) The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (CCP § 437c(p).)

"A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (CCP § 437c(f)(1).)

“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 v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; CCP § 437c(c).)

“Declarations must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion. The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779, quoting Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761; see also CCP § 437c(d).)

In analyzing motions 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 Ctr. (2005) 135 Cal.App.4th 289, 294.)

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).) “If a cause of action is not shown to be barred in its entirety, no order for summary judgment — or adjudication — can be entered.”  (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975; Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 476; Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) “The purpose of the enactment of¿Code of Civil Procedure section 437c, subdivision (f)¿was to stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)

B.          Discussion

1.           Undisputed Affirmative Defenses

Byk does not dispute McDaniels’ motion for summary adjudication of the following affirmative defenses. (Opposition, p. 7:1—8:10.)

·                    Second Affirmative Defense: Active Negligence

·                    Third Affirmative Defense: Comparative Fault of Plaintiff

·                    Fourth Affirmative Defense: Proportionate Fault of Others

·                    Fifth Affirmative Defense: Proposition 51

·                    Sixth Affirmative Defense: Apportionment and Contribution

·                    Ninth Affirmative Defense: No Proximate Cause: Comparative Fault of Plaintiff

·                    Eleventh Affirmative Defense: Intervening Cause

·                    Twelfth Affirmative Defense: Statute of Limitations

·                    Thirteenth Affirmative Defense: Laches

·                    Fourteenth Affirmative Defense: Waiver and Estoppel

·                    Seventeenth Affirmative Defense: Labor Code

·                    Eighteenth Affirmative Defense: Independent Causes

·                    Nineteenth Affirmative Defense: Unavoidable Incident or Condition

·                    Twentieth Affirmative Defense: Superseding Cause

·                    Twenty-Ninth Affirmative Defense: Public Interest

The Court GRANTS Plaintiff’s Motion for Summary Adjudication as to the above affirmative defenses.

2.           Disputed Affirmative Defenses

a.           Seventh Affirmative Defense: Assumption of the Risk

Primary assumption of risk is merely another way of saying no duty of care is owed due to the risks that are inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature. “Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks. The doctrine applies to any activity done for enjoyment or thrill . . . that involves a challenge containing a potential risk of injury. The test is whether the activity involves an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1297 [cleaned up].)

McDaniels’ contends that Byk cannot raise an assumption of risk defense to an intentional tort, in part because parties cannot contract to release others from liability for intentional torts. (Motion, MPA, p. 9:8-21; Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146, 170 ["As a preliminary matter, we question whether the primary assumption of risk applies to Szarowicz's intentional tort claim where he is alleging that Birenbaum intended to harm him.”]; Farnham v. Superior Court (Sequoia Holdings, Inc.) (1997) 60 Cal.App.4th 69, 71.) Byk does not address this argument. Rather, Byk argues in deposition testimony and in videos produced at deposition that McDaniels “behaved aggressively and engaged in shouting with Byk during the April 29, 2021 subject incident.” (Byk’s Response to McDaniels’ Separate Statement (BSS), No. 42.)

The Court finds that under Szarowicz an assumption of risk defense cannot apply to intentional torts.

Summary adjudication is GRANTED as to Byk’s Seventh Affirmative Defense.

b.           Eighth Affirmative Defense: Failure to Mitigate Damages

“The doctrine of mitigation of damages holds that a plaintiff who suffers damage as a result of . . . a breach of contract . . . has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided. Under the doctrine, a plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion. However, the duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable.” (Agam v. Gavra (2015) 236 Cal.App.4th 91, 111 [cleaned up].)

The Court finds no evidence that McDaniels failed to act reasonably to mitigate his damages following allegedly defamatory statements from Byk. (McDaniels Separate Statement (MSS), No. 46; BSS No. 46.) Rather, the Court finds that Byk’s evidence on this issue concerns the calculation of Plaintiff’s damages, not the question of whether McDaniels reasonably acted to mitigate his damages.

Summary adjudication is GRANTED to Byk’s Eighth Affirmative Defense because no triable issue of material fact has been identified.

c.           Tenth Affirmative Defense: No Proximate Cause – Damages

The Court finds triable issues of material fact as to whether Byk caused McDaniels a loss of income from McDaniels massage work for Defendant Jeremy Byk and his father Jon Byk. McDaniels’ response to Form Interrogatory No. 8.7 suggests that McDaniels lost $13,600 as a result of the April 29, 2021 incident, but Defendant Jeremy Byk testified in deposition that he ceased paying McDaniels for massage services prior to the incident, and notes that McDaniels’ Separate Statement corroborates this narrative. (Opposition, p. 9, 13-22; Arias Decl., Ex. E, p. 38:13—39:13; MSS No. 94.)

Summary adjudication of the Tenth Affirmative Defense is DENIED as there are triable issues of material fact on this issue.

d.           Fifteenth Affirmative Defense: Unclean Hands

“Not every wrongful act constitutes unclean hands. But the misconduct need not be a crime or an actionable tort. Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine. The misconduct must also prejudicially affect . . . the rights of the person against whom the relief is sought so that it would be inequitable to grant such relief. The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made, i.e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants.” (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 685 [cleaned up].) "The Blain court enunciated a three-pronged test to determine the effect to be given to the plaintiff's unclean hands conduct. Whether the particular misconduct is a bar to the alleged claim for relief depends on (1) analogous case law, (2) the nature of the misconduct, and (3) the relationship of the misconduct to the claimed injuries." (East West Bank v. Rio School Dist. (2015) 235 Cal.App.4th 742, 751.)

McDaniels argues that he “is unaware of any “analogous case law” applying the defense of unclean hands to claims of assault or defamation” and suggests that under East West Bank Byk’s failure to state legal authority “is sufficient to warrant the denial of the defense.” (East West Bank, 235 Cal.App.4th at 751; Motion, MPA, p. 13:13-16.) Byk fails to provide sufficient legal authority for the doctrine of unclean hands in his Opposition.

The Court finds no triable issue of material fact on the question of legal authority for the application of the doctrine of unclean hands as an affirmative defense to intentional torts.

Summary adjudication is GRANTED on Byk’s Fifteenth Affirmative Defense.

e.           Twenty-First Affirmative Defense: Non-Substantial Factor

The Court finds that Byk’s Twenty-First Affirmative Defense is an element of the causes of action for defamation and assault, not an affirmative defense for either. (Motion, MPA, p. 15:26—16:5.)

Summary adjudication is GRANTED as to Byk’s Twenty-First Affirmative Defense.

f.            Twenty-Fifth Affirmative Defense: Defense of Others

Under CALCRIM 3470, the right to defend another requires three elements: (1) a defendant who reasonably believed that another person was “in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully”, a defendant who “reasonably believed that the immediate use of force was necessary to defend against that danger”, and (3) a defendant who “used no more force than was reasonably necessary to defend against that danger.” (Judicial Council Of California Criminal Jury Instruction (CALCRIM) 3470.)

McDaniels argues that no evidence exists to suggest that Byk acted in defense of others. (MSS Nos. 129, 130, 132; Motion, MPA, p. 16:6-13.) Byk notes that he acted in defense of his father, Jon Byk. (BSS Nos. 128-135.)

The Court finds that Defendant Jeremy Byk does not dispute that he and McDaniels “were the only two people outside during the alleged assault and Jon Byk was inside the house.” (MSS No. 130; BSS No. 130.) Thus, the Court finds no triable issue of material fact as to whether Defendant Jeremy Byk could act under a reasonable belief that another person was in imminent danger of suffering bodily injury or being touched unlawfully.

Summary adjudication is GRANTED as to Byk’s Twenty-Fifth Affirmative Defense.

g.           Twenty-Eighth Affirmative Defense: Opinion

“Because a defamatory statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Though mere opinions are generally not actionable, a statement of opinion that implies a false assertion of fact is. . . . Thus, the inquiry is not merely whether the statements are fact or opinion, but whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1261 [cleaned up].)

The statements in question by Byk are as follows: “(1) McDaniels put his “cock on [Byk’s] shoulder;” (2) McDaniels “sexually assaulted” Byk; and (3) McDaniels “intentionally pressed his penis against [Byk’s] left shoulder”.” (MSS No. 138; BSS No. 138.)

The Court finds that a reasonable fact finder could conclude that these published statements declare provably false factual assertions. Since all of these statements make evidentiary claims about McDaniels’ conduct, the Court finds no triable issue of material fact as to the nature of these statements.

Summary adjudication is GRANTED as to Byk’s Twenty-Eighth Affirmative Defense.

III.     CONCLUSION

Plaintiff Marcus McDaniels’ Motion for Summary Adjudication is GRANTED as to the following affirmative defenses in Defendant Jeremy Byk’s Answer:

·                    Second Affirmative Defense: Active Negligence

·                    Third Affirmative Defense: Comparative Fault of Plaintiff

·                    Fourth Affirmative Defense: Proportionate Fault of Others

·                    Fifth Affirmative Defense: Proposition 51

·                    Sixth Affirmative Defense: Apportionment and Contribution

·                    Seventh Affirmative Defense: Assumption of the Risk

·                    Eighth Affirmative Defense: Failure to Mitigate Damages

·                    Ninth Affirmative Defense: No Proximate Cause: Comparative Fault of Plaintiff

·                    Eleventh Affirmative Defense: Intervening Cause

·                    Twelfth Affirmative Defense: Statute of Limitations

·                    Thirteenth Affirmative Defense: Laches

·                    Fourteenth Affirmative Defense: Waiver and Estoppel

·                    Fifteenth Affirmative Defense: Unclean Hands

·                    Seventeenth Affirmative Defense: Labor Code

·                    Eighteenth Affirmative Defense: Independent Causes

·                    Nineteenth Affirmative Defense: Unavoidable Incident or Condition

·                    Twentieth Affirmative Defense: Superseding Cause

·                    Twenty-First Affirmative Defense: Non-Substantial Factor

·                    Twenty-Fifth Affirmative Defense: Defense of Others

·                    Twenty-Eighth Affirmative Defense: Opinion

·                    Twenty-Ninth Affirmative Defense: Public Interest

  Summary adjudication is DENIED as to Defendant Byk’s Tenth Cause of Action as to the causation of Plaintiff’s damages.