2016-00193072-CU-PA

Larry Rehrer vs. Nihad Dizdarevic

Nature of Proceeding: Motion for Summary Adjudication

Filed By: Bennett, Robert F., Jr.

Defendants’ motion for summary adjudication of plaintiff’s cause of action for intentional infliction of emotional distress and claim for punitive damages is ruled on as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendants’ 39 Undisputed Material Facts, which of plaintiff’s 26 Additional Material Facts and/or which of the objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants’ counsel failed to redact plaintiff’s social security number from at least three documents filed as exhibits in support of this motion, in violation of CRC Rule

1.20(b). (See Ex. G, pp. 1, 9; Ex. K, p.1.) Counsel are reminded that the court’s CCMS system allows the public to electronically access and view all pleadings once they are filed, unless the court orders otherwise. Thus, it is imperative for counsel to appropriately redact all pleadings and documents before filing. Defendants’ counsel is directed to promptly lodge, not file, with the court a properly redacted version of the Bennett Declaration originally filed on 12/21/2017 in support of this motion, attachments to which contained plaintiff’s social security number.

The clerk is directed to change the security clearance for the Bennett Declaration filed on 12/21/2017 so that it is no longer viewable by the public.

Defendants also filed in support of the present motion a multitude of plaintiff’s (unredacted) medical records which contain a variety of information that would be considered personal and private, all of which is also now viewable by the public via the court’s CCMS system. Should plaintiff now desire to limit the public’s access to such personal and private information, he should promptly file and serve an appropriate motion/application to seal same and to simultaneously lodge, not file, a properly redacted version of each document containing such information.

Both moving and opposing counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when evidence exceeds 25 pages.

Both moving and opposing counsel failed to comply with various requirements of CRC Rule 3.1354, relating to the proper format for written objections to evidence and prohibiting objections to evidence from being restated or reargued in the separate statements.

Moving counsel failed comply with CRC Rule 3.1350(b) and (h), requiring that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement.

Moving counsel included the moving separate statement of Undisputed Material Facts (“UMF”) a number of facts which do not meet CRC Rule 3.1350(a)(2)’s definition of “material facts” (i.e., “facts that could make a difference in the disposition of the motion”) and should therefore not have been included in the separate statement. Counsel is advised that according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).)

Moving counsel failed to comply with CRC Rule 3.1116(c), requiring deposition transcripts cited as evidence be highlighted in some manner that calls attention to the cited testimony.

Opposing counsel failed to comply with CRC Rule 3.1116(b), requiring only the relevant pages of deposition transcripts be included in evidence.

Although the notice of motion provided notice of the court’s tentative ruling system as required by Local Rule 1.06(D), the notice does not comply with that rule. Moving counsel is directed to review the Local Rules, effective 1/1/2018.

Factual Background

This is a personal injury action arising from a motor vehicle accident. Plaintiff’s amended complaint consists of a cause of action for negligence and another for intentional infliction of emotional distress (“IIED”), on which a claim for punitive damages is based. The essence of the IIED and punitive damages claims targeted by the present motion are that the defendant driver intentionally lied to the parties’ insurers in connection with their investigation of the accident and induced others to make false statements regarding the cause of the accident, resulting in severe emotional distress to plaintiff.

Moving Papers. Defendants now move for summary adjudication of the IIED claim on the grounds that defendant driver’s conduct was not so outrageous as to exceed all bounds of that which is tolerated by a decent society and that plaintiff cannot establish he suffered “severe emotional distress” as result of the conduct. Defendants also seek summary adjudication of the punitive damages claim on the ground plaintiff cannot show malice, fraud or oppression by the requisite standard of clear and convincing evidence. Although defendants’ notice of motion and separate statement fail to comply with the express requirements of CRC Rule 3.1350(b) and (h), this motion is premised on defendants’ UMF Nos. 1-39.

Opposition. Plaintiff opposes the motion, making a variety of arguments and contending that a number of defendants’ 39 UMF are “disputed.” The opposition also includes 26 Additional Material Facts (“AMF”) claimed to create triable issues of fact precluding summary adjudication.

Objections to Evidence

Plaintiff filed no written objections to evidence in conformity with CRC Rule 3.1354, which requires such objections to be set forth in a separate document and both cite the page and line numbers of the objectionable material and quote the objectionable material.

To the extent plaintiff’s response to defendants’ separate statement of UMF purports to assert objections to evidence, such objections are overruled because they fail to comply with the express requirements of Rule 3.1354, which also prohibits objections from being restated or reargued in the separate statement.

To the extent plaintiff’s response to defendants’ separate statement of UMF purports to assert objections to the UMF themselves, such objections must be overruled because objections are properly directed at evidence only. (See, CRC Rules 3.1352, 3.1354.)

Defendants’ written objections to plaintiff’s evidence are overruled because they appear to be directed only at plaintiff’s AMF but objections are properly directed at evidence only. (See, CRC Rules 3.1352, 3.1354.)

To the extent defendants’ written objections could be construed as objections to plaintiff’s evidence rather than plaintiff’s AMF, the objections are overruled because they do not cite the page and line numbers of the objectionable material and also do not quote or set forth the objectionable material.

Analysis

Even assuming the moving papers were sufficient to satisfy defendants’ initial burden of production under Code of Civil Procedure §437c(p)(2) with respect to both of the issues posed for summary adjudication and thereby successfully shifted the burden to plaintiff, the court finds the opposition has met its burden of producing evidence which demonstrates the existence of several triable issues of material fact which preclude summary adjudication in favor of defendants. This conclusion is reinforced by the fact that all of defendants’ purported objections to evidence have been overruled and that the evidence offered in opposition to a motion for summary judgment/adjudication must be construed liberally while the evidence in support of the motion is construed narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.)

Moreover, as pointed out above, the Nazir decision indicates that the existence of a dispute over any single UMF offered by the moving party mandates denial of summary judgment/adjudication even if the single UMF were not truly “material” within the meaning of CRC Rule 3.1350(a)(2). In the case at bar, defendants included in their 39 UMF a number of facts which are not fairly characterized as affecting the disposition of the present motion but because defendants included them in their motion, the existence of a dispute over these requires the court to deny the present motion since the opposition includes a variety of evidence which is sufficient to create a triable dispute of the UMF. In particular, the opposition has established triable issues of material fact in connection with UMF Nos. 5-6, 8, 10, 12-13, 15-19 and 23-34.

Finally, the 26 AMF advanced by plaintiff in the opposition are also sufficient to create additional triable issues of fact relative to the questions of whether (1) defendant driver’s conduct was so outrageous as to exceed all bounds of that which is tolerated by a decent society, (2) plaintiff suffered “severe emotional distress” as result of defendant driver’s conduct and (3) plaintiff can prove malice, fraud or oppression by clear and convincing evidence, especially in light of the court’s overruling all of defendants’ purported objections to plaintiff’s evidence.

Conclusion

For the reasons explained above, defendants’ motion for summary adjudication must be and hereby is DENIED in its entirety.