Case Number: BC469392 Hearing Date: June 09, 2014 Dept: 91

The Motion for Summary Judgment by Defendants, Joseph Amin and Century Pharmacy (“collectively, Century Pharmacy”), filed on 2/6/14 is DENIED. Defendants have not met their burden of showing that they are entitled to judgment on Plaintiff’s complaint as the material facts proffered remain in dispute. CCP sec 437c(p)(2).

The parties do not dispute the applicable law, that Defendant must have placed the product in the stream of commerce. San Diego Hospital v. Superior Court 30 Cal.App.4th 8, 13 (1994). Liability extends to all those engaged in the chain of distribution. San Diego Hospital at 13.

Century Pharmacy has not persuasively established that the deposition testimony of Rabin Zarifpour should be disregarded as it is “self-serving.” Defendant relies on a case that reflected the standard applicable in employment discrimination cases — that Plaintiff must produce “substantial responsive evidence to show that UPS’s ostensible motive was pretextual; that is, ‘that a discriminatory reason more likely motivated the employer or that the employer’s explanation is unworthy of credence.’” King v. United Parcel Service, Inc., 152 Cal. App. 4th 426, 433 (Cal. App. 3d Dist. 2007). In that context, a self-serving declaration attesting to the plaintiff’s subjective belief was insufficient “substantial evidence.”

Moreover, where summary judgment is based on an absence of evidence as Defendant argues here, Defendant must make an affirmative showing by way of direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case.
Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. App. 6th Dist. 1995).

Century Pharmacy’s additional evidence submitted with the Reply brief is disregarded, especially the deposition testimony of Vida Nobel, whose deposition was taken on 3/20/14 after the Defendant’s Motion was filed. Evidence is required to be submitted with the moving papers. Plaintiff has not had an opportunity to respond to this new evidence. While the code provides for reply papers, “it makes no allowance for submitting additional evidence or filing a supplemental separate statement. (§§ 437c, subd. (b).) This is consistent with the requirement that supporting papers and the separate statement be served with the original motion.” San Diego Water Craft v. Wells Fargo 102 Cal. App. 4th 308, 313 (2002).

Plaintiff’s objection to Defendant’s evidence under Evidence Code sec 1272 is OVERRULED. Century Pharmacy proffers this evidence under Evidence Code sec 1274, which permits admission of the evidence where a declaration of the Custodian of Records stating the absence of records is also provided. Century Pharmacy provides one declaration at Exhibit H with respect to the absence of Medi-Care Records. While Defendant refers to Ex. I, that Exhibits contains all records produced; there is no declaration stating no records were found.

Century Pharmacy’s objections to evidence are overruled. The objections to the opposing separate statements are overruled, as these are not evidentiary objections, but are objections to the manner in which Essential Medical and Plaintiff characterized material facts.

Triable issues of material fact warrant denial of the motion. Plaintiff’s Interrogatory Responses proffered by the moving party, as well as Rabin’s deposition testimony support the claim that Rabin bought the walker from Century Pharmacy. While MediCare does not have record of a claim for the purchase of a walker, inferring that this transaction did not occur, Rabin’s testimony creates a triable issue as to whether Plaintiff bought the walker from Century Pharmacy.

Rabin testified he signed a Medicare insurance form provided by Mr. Amin which disputes Century Pharmacy’s claim that they are not MediCare or Medi-Cal providers. Facts 4-15, [purporting to establish a lack of relevant Medicare or Medi-Cal records to infer that Amin did not sell the walker to Plaintiff are all controverted] remain in dispute.

Century Pharmacy’s claim that they did not sell or distribute the walker is controverted, based on Rabin’s testimony. Fact 16 – 19 are in dispute.