SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Michael Eric Anderson (“Plaintiff”) filed this action against Defendant Hank Lachman (“Defendant”) for injuries Plaintiff sustained after Defendant intentionally discharged a firearm at Plaintiff. Plaintiff alleges he was shot twice in the arm. Plaintiff’s First Amended Complaint (“FAC”), utilizing a Judicial Council Form, sets forth three causes of action for negligence, premises liability, and “intentional tort.” Plaintiff filed two amendments to complaint, naming the same Defendant, Hank Lachman aka Harry Davin Lachman, as Doe 1.  

Plaintiff now moves for summary judgment or in the alternative summary adjudication.  Any opposition to the motion was due on or before September 11, 2023. (CCP § 437c(b)(2).) To date, no opposition has been filed.¿¿ 

 

II. Request for Judicial Notice 

Plaintiff requests the Court take judicial notice of: (1) The Court’s July 22, 2022 order granting Plaintiff’s Motion to Deem Request for Admissions (“RFAs”) admitted, (2) the Court’s July 22, 2022 tentative ruling of Plaintiff’s Motion to Deem RFAs admitted, (3) the existence, contents, and exhibits of Plaintiff’s Motion to Deem RFAs admitted, and (4) the existence, contents, and exhibits regarding Plaintiff’s Notice of Ruling on the Motion to Deem RFAs admitted. 

Requests 1, 3, and 4 are granted only to the extent as to the existence of the documents, but not to the contents or the truth of the matters therein. [Judges cannot take judicial notice of hearsay statements asserted in court filings, but can take judicial notice of the existence of such documents.  Johnson & Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768;  Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130 n. 7  (judges may take judicial notice of the existence of court documents, “but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”).] 

Request 2 is denied.  

  

Plaintiff is therefore deemed to have admitted the following: (1) Plaintiff was living with Defendant on Defendant’s property at 8001 Winsford Ave., Los Angeles, CA 90045; (2) On September 12, 2019, Defendant shot Plaintiff in his left arm; (3) Defendant placed a pillow over the gun he shot Plaintiff with; (4) on September 12, 2019, James Copeland (“Copeland”) was Defendant’s neighbor at 8007 Winsford Ave., Los Angeles, CA 90045; (5) Copeland drove Plaintiff and Defendant to the hospital after Defendant shot Plaintiff; (6) Defendant wrote a post-it note to Plaintiff while Plaintiff was in the hospital in September 2019 and gave it to Plaintiff; (7) In October 2019, Defendant was arrested for shooting Plaintiff; and (8) Defendant instructed Defendant’s friend “Vince” to destroy the gun Defendant shot Plaintiff with.  

 

1. First Cause of Action - Negligence  

The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. “ ‘In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances.’ This is because ‘[e]ach case presents different conditions and situations. What would be ordinary care in one case might be negligence in another.’ ” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 639-640, internal citation omitted.) 

Plaintiff pled in the alternative both negligence and an intentional tort under the same facts. Generally, complainants may plead, in the alternative, inconsistent facts or theories. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 690;  Adams v. Paul (1995) 11 Cal.4th 583, 593.) While Plaintiff may allege two or more causes of action which are inconsistent with each other in the pleading, Plaintiff is not entitled to recover under both theories on a motion for summary judgment, especially when the elements are legally distinct and contradictory to each other. Complaint allegations are not evidence, because pleadings are merely formal allegations. (San Diego Police Officers Assn. v. City of San Diego (1994) 29 Cal. App. 4th 1736, 1744;  Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal. App. 4th 220, 241.) The deemed admissions make it clear that the underlying lawsuit is for an intentional act as opposed to an unintentional act falling below the standard of care. Therefore, there is insufficient evidence to meet Plaintiff’s moving burden to show he is entitled to judgment as to the cause of action for negligence.  

Accordingly, adjudication as to the cause of action for negligence is DENIED.   

 

2. Second Cause of Action - Premises Liability 

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  “[B]efore liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’” (Stone v. Center Trost Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.) 

Plaintiff’s operative FAC alleges Defendant negligently owned, maintained, managed and operated the premises. Plaintiff also contends Defendant was Plaintiff’s landlord. However, there is no evidence that a dangerous condition of the property caused Plaintiff damages. Plaintiff’s allegations make it clear that Plaintiff’s suit against Defendant is premised upon the intentional act of Defendant shooting Plaintiff twice in the arm. Plaintiff provides no support that any condition of the property supports a cause of action for premises liability. Therefore, adjudication as to the cause of action for premises liability is DENIED.   

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; see also Kiseskey v. Carpe’ters’ Trust for So. Cal. (1983) 144 Cal.App.3d 222, 232 [“The tort of assault is complete when the anticipation of harm occurs.”].)    

The elements of a civil battery are (1) the defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person, (2) the plaintiff did not consent to the contact, and (3) the harmful or offensive contact caused damage to the plaintiff.  (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.)    

Generally, complaints must contain ultimate facts. (Doe v. City of Los Angeles  (2007) 42 Cal.4th 531, 550;  Berger v. Cal. Ins. Guar. Ass’n (2005) 128 Cal.App.4th 989, 1006;   Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4th 592, 606.) The difference between conclusions and ultimate facts is not clear, but involves matters of degree, and a determination whether the complaint apprises defendants of the bases. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exch. (2005) 132 Cal. App. 4th 1076, 1099 (citing, e.g., Perkins v. Sup. Ct. (1981) 117 Cal. App. 3d 1, 6).)  

Notably missing from the allegations as to the purported sub causes of action for assault and battery is that Plaintiff did not consent to Defendant’s conduct. This is an essential element to the causes of action for assault and battery. Accordingly, the Court is unable to grant Plaintiff’s motion on an unspecific third cause of action with legal theories not fully pled. Furthermore, the Court notes the supporting evidence referenced in Plaintiff’s separate statement, aside from the RFAs deemed admitted, are inadmissible hearsay. When a plaintiff seeks summary judgment, the plaintiff must produce admissible evidence on each element of each cause of action on which judgment is sought.  (Code Civ. Proc., § 437c(p)(1).) The police and crime report, offered to prove the truth of the matters asserted, are inadmissible hearsay. Further, the unauthenticated medical and billing records are inadmissible.  

 

IV. Conclusion  

Based on the foregoing, Plaintiff’s motion for summary judgment or alternatively adjudication is DENIED.  

 

Plaintiff is ordered to give notice.   

 

 

Dated this 21st day of September 2023