Case Name:   Mark Muhn, et al. v. Omni Law Group, LLP, et al.

Case No.:       1-12-CV-230687

Motion by Defendants Just, Gurr & Associates Accountancy Corporation and Kevin Just for Summary Judgment on Complaint of Plaintiffs Mark Muhn and Muhn & Sons, Inc.

Defendants’ motion for summary judgment of is GRANTED.

After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by each party, the court finds that Defendants failed to meet their initial burden of showing a complete defense (statute of limitations) to Plaintiffs’ sole cause of action against Defendants for professional negligence.

However, the court finds that Defendants have met their initial burden of showing that plaintiffs cannot establish one or more elements of their cause of action for professional negligence.  (See Separate Statement of Undisputed Material Facts in Support of Defendants’ Motion for Summary Judgment, Fact Nos. 7 – 16.)  “[A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof … . Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)  At paragraphs 16 – 17, the complaint alleges Defendants failed to gather and present evidence to the IRS/FTB and that had Defendants done so, the IRS/FTB would not have issued an assessment against Plaintiffs for unpaid taxes. Plaintiffs failed to specifically identify any evidence that Defendants failed to gather and/or present to the IRS/FTB which would have absolved Plaintiffs of liability for unpaid taxes.  Plaintiffs fail to present any admissible evidence in opposition which would create a triable issue of material fact.