EUN JUNG LIM
[ENTER ADDRESS]
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE |
|
| EUN JUNG LIM, Plaintiff v. HOAG MEMORIAL HOSPITAL PRESBYTERIAN; and HERBERT CONRAD, Defendants | Case No.: 30-2022-01242187 NOTICE OF MOTION; MOTION FOR SUMMARY JUDGMENT; & MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT. |
NOTICE OF MOTION
To ALL Defendants and to their Attorneys of Record:
Please TAKE NOTICE that on [ENTER DATE], at [ENTER TIME] or soon thereafter, the Plaintiff herein will move this Court, in Department C25 for an order granting Plaintiff’s Motion for Summary Judgment.
This motion will be based on the grounds that there is no issue of material fact, and that there is no merit to the Defendants’ affirmative defenses as to all causes of action in Plaintiff’s Complaint.
Further, the motion will be based on this Notice of Motion, the Memorandum set forth below, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.
Dated: [ENTER DATE]
| ____________________________EUN JUNG LIM |
EUN JUNG LIM
[ENTER ADDRESS]
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE |
|
| EUN JUNG LIM, Plaintiff v. HOAG MEMORIAL HOSPITAL PRESBYTERIAN; and HERBERT CONRAD, Defendants | Case No.: 30-2022-01242187 MOTION FOR SUMMARY JUDGMENT; & MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT. |
COMES NOW, Plaintiff, EUN JUNG LIM, pro se, files this Motion for Summary Judgment pursuant to Code of Civil Procedure (hereinafter “CCP”) § 437c. In support of this Motion, Plaintiff states as follows:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
FACTUAL BACKGROUND
The incidence giving rise to this action began when Plaintiff’s mother had been admitted at the First Defendant’s facility. On January 25, 2020, Plaintiff went to visit her mother. As Plaintiff was checking in at the ER at the First Defendant’s facility, the Second Defendant stole Plaintiff’s phone from the ER lobby and pushed the Plaintiff until Plaintiff fell.
Consequently, the police officers arrived and took a police report of the incidence. Interestingly, the Second Defendant gave false information that Plaintiff was the one who punched his face. Accordingly, Plaintiff was charged and a case was filed against her. During the pendency of the said case, the Irvine Police Department refused to give Plaintiff a copy of the Police Report. It was only when the case was dismissed when the Irvine Police Department gave the Plaintiff the Report.
The said case was dismissed on May 2021. After the dismissal of the case, the Plaintiff got the Report. It is also worth noting that during the trial of the said case, the detective, the attorneys of the hospital, and the head of security personnel at the hospital looked at the hospital camera footage that recorded the events of January 25, 2020. The Plaintiff tried to subpoena the hospital for the said footage. However, Plaintiff used the wrong Subpoena. Accordingly, the hospital’s attorney filed a Motion to Strike the said Subpoena on the ground that it violated HIPPA laws. On or about December 2020, the Court granted the Defendant’s Motion to Strike the Subpoena. The Plaintiff therefore never got an opportunity to present pertinent evidence of what really happened on the incident.
Unfortunately, Plaintiff’s mother died during the pendency of the case against Plaintiff. Further, Plaintiff has been subjected to emotional harm and distress pursuant to the malicious prosecution and the acts and/or inactions of the Defendants.
On or about September 23, 2021, the Plaintiff conducted a Public Records request. After the said request, the Plaintiff realized that Michele Hinig, a former detective working on Plaintiff’s case, maliciously made a declaration and warrant for the Plaintiff’s arrest by filing a false police report. The said declaration warrant for Plaintiff’s arrest contained notable irregularities and deficiencies.
Plaintiff filed an action against the Defendants on or about January 25, 2022. In the Complaint, Plaintiff alleged that Defendants were blameworthy for negligence, malicious prosecution, and intentional infliction of emotional distress.
On or about March 8, 2022, Defendant Hoag Memorial Hospital Presbyterian filed an Answer to Plaintiff’s Complaint. In the Answer, Defendant denied the allegations in Plaintiff’s Complaint. The Defendant also raised Affirmative Defenses to each of Plaintiff’s cause of action. Plaintiff therefore files this Motion for Summary Judgment.
ARGUMENTS
A. There is no issue of material fact
Summary judgment is properly granted where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. Code of Civil Procedure § 437c(c) states in pertinent part that, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Code of Civil Procedure § 437c(p)(1) states that for purposes of motions for summary judgment and summary adjudication,
(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.
Summary judgment is properly granted if there is no triable issue on any material fact and the moving party is entitled to judgment as a matter of law. Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847. Accordingly, Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question has been “proved,” and hence that there is no defense thereto. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850
A party opposing the motion bears the burden of setting forth specific facts showing a triable issue of material fact as to plaintiff’s claim or a defense thereto. Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092. The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 850.
Plaintiff avers that she has met this burden by making a prima facie showing that there are no triable issues of material fact. Notably, Plaintiff has stated, in clear terms, how the Defendants are liable for the causes of action in the Complaint. Since Plaintiff has met the burden the Defendant is now required to meet its own burden of making a prima facie showing that there is a triable issue of material fact.
If the moving party carries this burden, it causes a shift, and the opposing party is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 850. A prima facie showing is one that is sufficient to support the position of the party in question. “No more is called for.” Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 851.
Where plaintiffs are required to prove a matter at trial by a preponderance of the evidence, they must, in order to raise a triable issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than not. See Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 857. This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. “Otherwise, he would not be entitled to judgment as a matter of law.” See Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 851; LLP Mortg. v. Bizar (2005) 126 Cal.App. 4th 773, 776 (burden is on plaintiff to persuade court there is no triable issue of material fact.)
Plaintiff has met this burden in that she has produced more than enough factual evidence that would require a reasonable trier of fact to find the underlying material facts more likely than not.
At that point, the burden shifts to defendant (or cross-defendant) “to show that a triable issue of one or more material facts exists as to that cause of action.” Code of Civil Procedure § 437c(p)(1)
Unlike former law, it is not plaintiff’s initial burden to disprove affirmative defenses and cross-complaints asserted by defendant. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App 4th 454, 468 (citing text); Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App. 4th 554, 565 (citing text).
“A triable issue of material fact exists if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Thus, a party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145 (citations and quotations omitted.)
In the instant action, Plaintiff’s Complaint outlines how the Defendants are liable for the allegations therein. In the first cause of action (Vicarious liability), Plaintiff has stated that the the Second Defendant was working on the premises of the First Defendant. Accordingly, under the doctrine of respondeat superior, the First Defendant is liable for the actions and/or inactions of the Second Defendant herein. The Second Defendant assaulted Plaintiff by pushing her until she fell, and stealing her phone. Further, the Second Defendant gave false information to the Police, which led to the case against Plaintiff, which was dismissed.
On the second cause of action, Plaintiff has stated how a legal duty of care existed between Plaintiff and the Second Defendant. The Second Defendant had a duty to avoid committing any act that would harm Plaintiff. The said Defendant breached the duty when he pushed Plaintiff until Plaintiff fell, stole Plaintiff’s phone, and gave false report against Plaintiff.
On the third cause of action, Plaintiff has averred how the Second Defendant made false allegations against the Plaintiff. Notably, the Second Defendant lied that the Plaintiff punched him in the face. Instead, there was a video recording from the hospital, which would provide the truth regarding what really happened. The Irvine Police Department went ahead to prosecute the case without considering the falsity in the Police Report.
Under the fourth cause of action, the Plaintiff has averred how the Second Defendant intentionally gave false information to the police, that the Plaintiff punched him in the face. Due to the false allegations, the Plaintiff was charged and was subjected to prosecution. The said Defendant did the said actions and/or inactions without considering the effects such actions and/or inactions would have on Plaintiff.
Plaintiff therefore maintains that there is no genuine issue of material fact and that this Court should grant this Motion for Summary Judgment.
B. There is no merit to the Defendants’ affirmative defenses as to all causes of action in Plaintiff’s Complaint.
“It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74. Plaintiffs’ burden on summary judgment is to “produce admissible evidence on each element of a cause of action entitling them to judgment.” Hunter v.Pacific Mechanical Corporation (1995) 37 Cal.App.4th 1282, 1287.
Plaintiff has met the burden of producing admissible factual evidence on each element of the causes of action entitling it to judgment. Because plaintiff has met their burden, the burden now shifts to defendant to produce admissible evidence showing that a triable issue of material fact exists.
Once the moving party has met their initial burden, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of fact exists. Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66, 72.
The opposing party may not rely upon allegations or denials in its pleadings. Rather, it must “set forth the specific facts showing that a triable issue of material fact exists.” Santa Ana Unified School Dist. v. Orange County Develop. Agency (2001) 90 Cal. App. 4th 404, 411 ) failure to present evidence of laches barred its consideration as a defense at summary judgment hearing.)
The party opposing summary judgment must produce admissible evidence raising a triable issue of fact. Claims and theories not supported by admissible evidence do not raise a triable issue. Rochlis v. Walt Disney Co. (1993) 19 Cal. App. 4th 201, 219, (disapproved on other grounds in Turner v. Anheuser–Busch, Inc. (1994) 7 Cal. 4th 1238) (courts should not hesitate to summarily dispose of meritless litigation based on nothing more than a “smoke and mirrors” presentation); Lyons v. Security Pacific Nat’l Bank (1995) 40 Cal. App. 4th 1001, 1006 (party cannot oppose orally without separate statement or affidavits.)
Plaintiff avers that the Complaint filed by plaintiff clearly alleges sufficient facts to establish each and every required elements of all causes of action contained therein. The answer filed by defendant consists of nothing but “boilerplate” affirmative defenses which fail to state facts sufficient to constitute affirmative defenses.
CONCLUSION
Based on the above, Plaintiff EUN JUNG LIM respectfully requests that the Court grant this Motion for Summary Judgment on the grounds that no triable issue of material fact exists and plaintiff is entitled to judgment as a matter of law.
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], copies of the foregoing document have been sent to the Defendant in the following address:
CARROLL, KELLY, TROTTER & FRANZEN
MICHAEL J. TROTTER (SBN 139034)
JO LYNN VALOFF (SBN 177081)
111 West Ocean Boulevard, 14th Floor
Post Office Box 22636
Long Beach, California 90801-5636
Telephone No. (562) 432-5855 / Facsimile No. (562) 432-8785
mjtrotter@cktflaw.com / jlvaloff@cktflaw.com
Attorneys for Defendant, Hoag Memorial Hospital Presbyterian
DATED: ______________
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