XXX
XXX
XXX
SUPERIOR COURT OF THE STATE OFXXX
COUNTY OF XXX
XXX,
Plaintiff,
v.
XXX MEMORIAL HOSPITAL
PRESBYTERIAN; and XXX, in his official and individual
capacity,
Defendants.
Case No.: XXXX
RESPONSE TO THE DECLARATION
OF XXX VALOFF AND SCOTT
RUNNEL IN SUPPORT OF
DEFENDANT’S OPPOSITION TO
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
Judge: XXX
Department: XXX
COMES NOW, Plaintiff XXX, and files this Response to the Declaration of
XXXX and XXX in Support of Defendant’s Opposition to Plaintiff’s Motion for
Summary Judgment.
PROCEDURAL BACKGROUND
On or about January XXX, Plaintiff filed an action against the Defendants. 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 February XXX. The Defendant had 30 days to respond according to the law.
On or about March XXXX, 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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RESPONSE TO THE DECLARATION OF JO LYNN VALOFF AND SCOTT RUNNEL IN SUPPORT OF
DEFENDANT’S OPPOSITION TO PLAINTIFF’S 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.
On March XXXX, Plaintiff filed a Motion for Summary Judgment against the
Defendants. In the said motion, Plaintiff alleged inter alia, that there is no issue of material fact;
there is no merit to the Defendants’ affirmative defenses as to all causes of action in Plaintiff’s
Complaint; and the Plaintiff is entitled to judgment as a matter of law.
On July XXXX, Defendant Hoag Memorial Hospital Presbyterian (hereinafter “Hoag”)
filed an Opposition to Plaintiff’s Motion for Summary Judgment, and a declaration of XXX in Support of the Opposition. In the Declaration,XXX, who is an associate of the law
firm of Carroll, Kelly, Trotter & Franzen, attorneys of record for defendant Hoag Memorial
Hospital Presbyterian. In the declaration, Jo Lynn declares as follows: “I have personal
knowledge of all facts contained herein, except for those matters stated upon information and
belief. If called as a witness, I could and would competently testify thereto.” XXX also made
reference to Defendant Herbert Conrad’s Incident Report, which outlined his version of the
events in the January XXX incidence.
The Opposition also contained a declaration from Scott Runnel, who is the hospital’s IT
professional.
Both XXX and Scott declared that they saw the video of the January XXX incidence, but
not in the original format.
Plaintiff hereby files this rebuttal to the declarations, as follows:.
ARGUMENTS
i. XXXX and Scott Runnel do not have personal knowledge of the facts
According to Cal. Evid. Code § 702, “the testimony of a witness concerning a particular
matter is inadmissible unless he has personal knowledge of the matter.” “An averment on
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RESPONSE TO THE DECLARATION OF JO LYNN VALOFF AND SCOTT RUNNEL IN SUPPORT OF
DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
information and belief is inadmissible at trial, and thus cannot show a probability of prevailing
on the claim.” Evans v. Unkow, 38 Cal.App.4th 1490, 1498 (Cal. Ct. App. 1995).
A witness’s testimony must be based on his or her personal knowledge to be admissible.
See West v. Sundown Little League of Stockton, Inc., 351 Cal. App. 4th 351, 358 (2002); People
v. Valencia (2006) 146 Cal.App.4th 92, 103. When a witness lacks personal knowledge, that
witness’s testimony constitutes hearsay. People v. Valencia, supra, at p. 103. Unless an exception
to the hearsay rule applies, the evidence is inadmissible. Evid. Code, § 1200, subds. (a)-(b);
People v. Duarte (2000) 24 Cal.4th 603, 610.
Personal knowledge is defined as a present recollection of an impression derived from the
exercise of the witness’s own senses. See Evid. Code, § 702, Cal. Law Revision Com. Com.,
reprinted at 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 702, p. 300; People v. Lewis
(2001) 26 Cal.4th 334, 356, cert. den. sub nom. Lewis v. California (2002) 535 U.S. 1019;
People v. Tatum (2003) 108 Cal.App.4th 288, 297-298.
In the instant action, Jo Lynn Valoff (the Defendant’s attorney) and Scott Runnel (the
hospital’s IT professional) are not competent witness to testify in the case since they do not have
personal knowledge of the January 25 th incidence. They both allege that they saw the video of the
January 25 th incidence, but not in the original format.
Plaintiff notes that the said individuals would not preserve the video evidencing to prove
their allegations of assault and battery to use against Plaintiff. The Plaintiff is concerned that the
hospital may destroy the evidence. Plaintiff further assets that the Defendant’s conduct(s)
amounts to conversion, aiding and abetting, fraud and working in conjunction with law
enforcement. For the aforesaid reasons, the Defendant does not have personal knowledge of the
facts as alleged.
Plaintiff tried to subpoena the hospital footage which Subpoena was quashed. There is no
mention confirming false accusations of kicking punching a guard from an Asian female 4’ 11”.
Plaintiff believes the hospital made a spoilation of the video evidence. Also, there is no account
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RESPONSE TO THE DECLARATION OF JO LYNN VALOFF AND SCOTT RUNNEL IN SUPPORT OF
DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
or declaration of actual hospital staff, Adrian who was at the front desk checked Plaintiff in, and
the second guard who was with Conrad and Plaintiff.
ii. Defendant Herbert Conrad’s Incident Report was not given under oath
For evidence to be admissible, the proponent must provide proof that the evidence is
reliable. This calls for authentication of the evidence. According to Cal. Ev. Code § 1400 EC,
“[a]uthentication of a writing means (a) the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the evidence claims it is or (b) the
establishment of such facts by any other means provided by law.”
Here, Jo Lynn refers to Defendant Herbert Conrad’s Incidence Report. This report
contained an outline of facts according to Conrad. However, the report was not given under oath
or under the penalty of perjury. Therefore, the facts alleged therein have not been authenticated,
and their truthfulness have not been probed. Jo Lynn cannot therefore rely on the Incidence
Report as evidence for the said reason. Besides, it is only when a witness takes the stand that his
or her truthfulness is probed. United States v. Irizarry, 341 F. 3d 273, 311 (3rd Cir. 2003);
People v. Taylor, 180 Cal. App. 3d 622, 631 (1986). California Evidence Code section 780(e)
specifically provides that a witness’ “character for honesty or veracity or their opposites” are
among the factors a jury can consider when determining a witness’ credibility.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court disregards the
declarations of Jo Lynn and Scott Runnel for the aforesaid reasons. Plaintiff also prays for such
other and further relief that this court deems just and proper.
DATED:
Respectfully submitted,
______________________________XXX
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RESPONSE TO THE DECLARATION OF XXX VALOFF AND SCOTT RUNNEL IN SUPPORT OF
DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
CERTIFICATE OF SERVICE
I hereby certify that on _________, copies of the foregoing document have been
sent by United States Mail to the Defendant in the following address:
XXX
Attorneys for Defendant, Hoag Memorial Hospital Presbyterian
DATED: _____________
Respectfully submitted,
_________________________
XXX
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