2018-00235555-CU-MC

Mary Castex vs. Eskaton Properties, Inc.

Nature of Proceeding: Motion for Summary Adjudication

Filed By: Garcia, Stephen M.

Plaintiff Mary Castex’s (“Plaintiff”) motion for summary adjudication of defendants Eskaton Properties Incorporated (“Eskaton”), Todd Murch, Betsy Donovan, and Bill Pace’s (collectively, “Defendants”) first, second, sixth, seventh, ninth, tenth, eleventh, seventeenth, and twentieth affirmative defense is ruled upon as follows.

In this elder abuse case, Plaintiff alleges the following two causes of action: (1) violation of the Elder Abuse Act; and (2) negligent hiring and supervision. Plaintiff filed this action on June 22, 2018. Defendants filed their Answer on September 14, 2018, wherein they asserted twenty affirmative defenses. (ROA 40.)

Plaintiff seeks adjudication of nine of Defendants’ affirmative defenses on the grounds that Eskaton failed to identify a single fact, witness, or document to support the nine defenses in response to form interrogatory (set two) number 17.1 and, therefore, does not possess and cannot reasonably obtain evidence needed to support the defenses. Plaintiff does not attempt to negate any element of the nine affirmative defenses.

Legal Standard

A plaintiff may move for summary adjudication if he contends that one or more affirmative defenses have no merit. (Code Civ. Proc, § 437c, subd. (f)(1).) If an affirmative defense is completely disposed of, the court shall grant the motion. (Ibid; See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899.) The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he is entitled to summary judgment as a matter of law. (See’s Candy Shops, Inc., supra, 210 Cal.App.4th at 900.) This burden is met if the plaintiff either negates an essential element of the defense or establishes that the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. (Ibid, See Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal. App.4th 115,119-120.)

Sixth, Eleventh, and Seventeenth Affirmative Defenses

With regard to the sixth, eleventh, and seventeenth affirmative defenses, this motion is moot as Defendants have filed a request for dismissal as to these three affirmative defenses. (Opposition at 3:14-21.) Defendants only oppose the motion as to the remaining six challenged affirmative defenses.

First, Second, Ninth, Tenth, Eleventh, and Twentieth Affirmative Defenses

In support of her motion, Plaintiff presents evidence that she propounded Requests for Admissions, Set Two, and Form Interrogatories, Set Two (including Form Interrogatory number 17.1) on September 18, 2018, to defendant Eskaton. (UMFs 4, 5.) Requests for Admissions, numbers 32 through 52 asked Eskaton to admit that it did not have any facts or evidence to support its various affirmative defenses. If Eskaton failed to admit, Form Interrogatory 17.1 asked Eskaton to identify all facts, witnesses, and documents supporting each unqualified admission.

Eskaton served unverified responses on October 23, 2018, to the Requests for Admissions and Form Interrogatories. Eskaton objected on the grounds the discovery was premature and responded that Eskaton was “unable to admit or deny … because of lack of information or knowledge … .” Eskaton also responded “Discovery and investigation are ongoing and incomplete … .” Defendants further responded “Defendant deposed plaintiff Reginald Castex to obtain this information, but Mr. Castex’s deposition could not be completed and the necessary information could not be obtained.”

Plaintiff then met and conferred with Eskaton regarding the responses, but never received further responses identifying any fact, witness, or document in support of the subject affirmative defenses. There is no evidence presented that Plaintiff received verifications either, even though the meet and confer letters indicated verifications would be forthcoming.

Based on the foregoing, Plaintiff seeks summary adjudication of each subject affirmative defense as to all Defendants. Plaintiff argues the discovery responses establish all Defendants do not possess and cannot reasonably obtain evidence needed to support the defense.

First, as to defendants Todd Murch, Betsy Donovan, and Bill Pace, Plaintiff has not presented any evidence that these defendants do not possess and cannot reasonably obtain evidence needed to support the defenses. Plaintiff’s motion is based solely upon defendant Eskaton’s discovery responses. (Motion at Exhibits 3-6.) Plaintiff makes no argument as to how defendant Eskaton’s responses would be relevant to the argument that the individual defendants also do not have evidence and cannot obtain evidence to support their affirmative defenses. Accordingly, the Court finds Plaintiff has failed to meet her initial burden as to defendants Todd Murch, Betsy Donovan, and Bill Pace, and the motion as to these defendants is DENIED.

The motion as to defendant Eskaton is also DENIED. The Court finds Plaintiff also failed to meet its initial burden as to Eskaton. Plaintiff served the subject discovery just four days after Eskaton (and the other defendants) filed their Answer. Eskaton then objected that the discovery was premature and that it could not admit or deny because it was still conducting discovery. The Court notes (as pointed out by Plaintiff) that Eskaton served unverified responses, but there is no evidence in the moving papers that Plaintiff ever received verified responses or moved to compel. “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Thus, as it appears, although not raised by Defendants in opposition, responses were perhaps never provided and there is no evidence Plaintiff moved to compel them. If the responses were never verified and thus, no responses were provided at all, then there is absolutely no basis upon which summary adjudication could be granted. Even assuming, however, that verifications were eventually received (and thus proper verified responses provided), Eskaton’s objections and responses do not establish that it cannot reasonably obtain evidence needed to support the defenses. That Eskaton responded that it “deposed plaintiff Reginald Castex to obtain [the] information, but Mr. Castex’s deposition could not be completed and the necessary information could not be obtained” does not establish that Eskaton cannot reasonably obtain evidence needed to support the defenses. Indeed, Eskaton’s response also included the statement “Other depositions and interviews of witnesses have yet to occur” and indicated discovery is ongoing.

The Court does not rule on Defendants’ evidentiary objections to the Declaration of Sheila Chesanow, R.N., filed in support of their opposition since they concern evidence deemed immaterial to decision on the motion. (Code Civ. Proc., § 437c, subd. (q).)

The Court also does not rule on Plaintiffs’ objections to the Declaration of Joshua H. Rassen, M.D., filed in support of Plaintiffs’ reply since they also concern evidence deemed immaterial to decision on the motion. (Code Civ. Proc., § 437c, subd. (q).)

Plaintiff’s motion for summary adjudication is DENIED on the grounds Plaintiff failed to meet its initial burden. As Plaintiff failed to meet its initial burden, the burden never shifted to Defendants to establish a triable issue of material fact.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.