Filed 8/9/13 Smith v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



ALVIN DEWEY SMITH et al.,

         Petitioners,                                                    E058833

v.                                                                       (Super.Ct.No. CIVBS1100281)

THE SUPERIOR COURT OF                                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

POPPY STATE EXPRESS, INC., et al.,

         Real Parties in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of mandate. John B. Gibson,

Judge. Petition granted.

         Mazis & Park, Dmitry Mazisyuk and Joseph Sedlacek Park for Petitioners.

         No appearance for Respondent.




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       McElfish Law Firm, Raymond D. McElfish and Tyrone I. Toczauer for Real

Parties in Interest.

       In this matter, we have reviewed the petition and the opposition thereto which we

conclude adequately address the issues raised by the petition. We have determined that

resolution of the matter involves the application of settled principles of law, and that

issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S.

Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

       A defendant moving for summary judgment/adjudication must show that one or

more elements of a cause of action or damage claim cannot be established. (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 (Aguilar).)

       Once the defendant meets this burden, the burden shifts to the plaintiff to prove

the existence of a triable issue of fact regarding the claim.

       The defendant can meet the initial burden by presenting evidence that the plaintiff

does not possess and cannot reasonably obtain evidence needed to establish his claim.

(Aguilar, supra, 25 Cal.4th at p. 854.) However, California law requires that “a

defendant moving for summary judgment . . . present evidence, and not simply point out

that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id.

at p. 854, fn. omitted.)

       We conclude that the trial court erred in granting summary adjudication of the

punitive damages claim in favor of real parties in interest (defendants) because the latter

failed to present evidence to show that petitioners (plaintiffs) had no evidence to show

their entitlement to such damages. Such evidence might include plaintiffs’ own


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admissions or responses to discovery. For example, deposition testimony may show a

lack of evidence on a key element of the claim. Thus, in Leslie G. v. Perry & Associates

(1996) 43 Cal.App.4th 472, a tenant who was raped by an unknown assailant sued the

landlord for negligence. However, all of the witnesses for the tenant testified in their

depositions that they did not know how the rapist entered the garage. Pointing to this

lack of evidence on the element of causation, the appellate court found that the burden

had been shifted to the plaintiff.

       Defendants merely asserted plaintiffs lacked evidence, and pointed to some items

of evidence (i.e., coroners’ toxicology report, drug screens, and DMV record of the

decedent driver), that they argued failed to demonstrate a basis for punitive damages.

There is no indication that plaintiffs are solely relying on these items to establish punitive

damages. Indeed, defendants have made no effort to identify the facts upon which

plaintiffs are relying to substantiate their claim for punitive damages.

       To the extent that defendants are relying on the insufficiency of plaintiffs’

pleadings to allege punitive damages, the well-established rule is that a motion for

summary judgment or adjudication does not test the sufficiency of the pleadings.

(Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 596.) Thus, if, as defendants maintain,

the trial court previously denied the motion to strike without prejudice, defendants should

renew that effort in the trial court.

       Moreover, it was not enough for defendants to show merely that plaintiffs

currently have no evidence to support a key element of their claim, defendants must also

produce evidence showing plaintiffs cannot reasonably obtain evidence to support that


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claim. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Aguilar, supra, 25 Cal.4th

826, at p. 855.) Again, defendants’ showing failed in this regard.

       Because defendants never met their initial burden, we do not reach the issue

whether they were bound by an apparently inadvertent admission of liability for punitive

damages.

                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the Superior Court to vacate its

order granting defendants’ motion for summary adjudication and to enter a new order

denying the motion.

       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

       The parties are to bear their own costs.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 RAMIREZ
                                                                                         P. J.


We concur:


RICHLI
                           J.


CODRINGTON
                           J.


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