II. Motion for Summary Judgment 

Summary judgment is proper “if all the papers submitted 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.”  (Code Civ. Proc. §437c(c).)  The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….”  (Aguilar, supra, 25 Cal.4th at 865-66.) 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) 

A pending action does not abate by the death of a party if the cause of action survives. (CCP § 377.21.) Unless the decedent's personal representative is made a party, a judgment should not be rendered for or against a decedent, nor for or against the representative. (See¿Sacks v. FSR Brokerage, Inc.¿(1992) 7 Cal.4th 950, 957;¿Sellery v. Cressey¿(1996) 48 Cal.4th 538, 541, fn. 2.) Defendants argue that since Plaintiff Elizarraras has passed away, there can be no cause of action rendered for him. However, Defendants omit the second portion of their citation to Sacks, which provides that when a party passes away, judgment may not be rendered for or against the deceased party. Here, Defendants seek summary judgment against the deceased party, Plaintiff Elizarraras.  

Defendants also argue that Plaintiff Garcia, the grandson, cannot be Decedent’s successor-in-interest because Probate Code §6402 states that the estate will pass first to the issue of the Decedent, if there are no issue, to the parent of the Decedent and if there are no surviving issue or parent, to the issue of the parents. Defendants contend Decedent had no surviving spouse, and thus Plaintiff Garcia cannot be the successor-in-interest. However, the Court finds issues with this contention. First, Probate Code §6402 is for intestacy. Defendants provide no evidence that Decedent is truly intestate for this probate section to apply. Second, even if Decedent was intestate, Defendants provide no evidence that there is, indeed, a surviving issue or parents of Decedent for the grandson to not possibly be the successor-in-interest, since intestacy follows a successive chain depending on whether there are any survivors of a certain category.  

Defendants are ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 30th day of November 2023