XXX
XXX
XXX
XXX
XXX
Plaintiff In Pro Per
SUPERIOR COURT OF THE STATE OF XXX
FOR THE COUNTY OF XXX
XXX,
Plaintiff
v.
XXX MEMORIAL HOSPITAL
PRESBYTERIAN; and XXX,
Defendants
Case No.: XXX
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
AMENDED MOTION FOR SUMMARY
JUDGMENT.
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 XXX, 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
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
MOTION FOR SUMMARY JUDGMENT
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 with favorable disposition on May XXX. 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 XXX. 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 XXX, 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 XXX, the Plaintiff conducted a Public Records request. After
the said request, the Plaintiff realized that XXX, 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 XXX. In the
Complaint, Plaintiff alleged that Defendants were blameworthy for negligence, malicious
prosecution, and intentional infliction of emotional distress. Summons was also served on the
Defendant on Feb XXX. The Defendant had 30 days to respond according to the law.
On or about March XXX, Defendant Hoag Memorial Hospital Presbyterian filed an
Answer to Plaintiff’s Complaint. In the Answer, Defendant denied the allegations in Plaintiff’s
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
MOTION FOR SUMMARY JUDGMENT
Complaint. The Defendant also raised Affirmative Defenses to each of Plaintiff’s cause of
action. Plaintiff therefore files this Motion for Summary Judgment. It is worth noting that
Defendant filed an incorrect proof of service by email. Specifically, Plaintiff’s email is incorrect
in the said proof of service.
Plaintiff filed the first Motion for Summary Judgment. However, in the said filing,
Plaintiff made an innocent excusable omission of the supporting documents in support of the
motion. See Haines v. Kerner, 404 U.S. 520 (1971) (Here, Plaintiff-inmate filed pro se complaint
against prison seeking compensation for damages sustained while placed in solitary confinement.
In finding plaintiff’s complaint legally sufficient, Supreme Court found that pro se pleadings
should be held to "less stringent standards" than those drafted by attorneys.)
Accordingly, Plaintiff files this Amended Motion for Summary Judgment, which contains
the supporting documents pursuant to Cal. R. 3.1350(c), to wit: Separate Statement of
Undisputed Material Facts, Evidence in Support of Motion for Summary Judgment, and Request
for Judicial Notice in Support of 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
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
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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
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
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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
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
MOTION FOR SUMMARY JUDGMENT
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.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
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.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
MOTION FOR SUMMARY JUDGMENT
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.
C. The Plaintiff is entitled to judgment as a matter of law
Courts will grant a Motion for Summary judgment if the moving party is entitled to a
judgment as a matter of law. See Code of Civil Procedure § 437c(c); see also Eriksson v.
Nunnink (2011) 191 Cal.App.4th 826, 847.
In the instant action, the Defendant replied to the Plaintiff’s Complaint past the 30 days’
time limit, which reason entitles Plaintiff to a Summary judgment. Notably, Plaintiff served
Summons on the Defendant on Feb 2, 2022. The Defendant had 30 days to respond according to
the law. However, Defendant filed an answer on or about March 8, 2022.
It is also worth noting that Defendant filed an incorrect proof of service by email.
Specifically, Plaintiff’s email is incorrect in the said proof of service.
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.
Respectfully submitted,
Signature
_________________________
XXX
XXX
XXX
XXX
XXX
XXX.
Plaintiff In Pro Per
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED
MOTION FOR SUMMARY JUDGMENT
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:
XXXX
XXXX
XXXX
Attorneys for Defendant, Hoag Memorial Hospital Presbyterian
DATED: ______________
Respectfully submitted,
Signature
_________________________
XXX
XXX
XXX
XXX
Plaintiff In Pro Per
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