Motion for Summary Judgment; Motion for Summary Adjudication
22CV-03057 Fernando Echeverria vs Doe 1, et al.
Motion for Summary Judgment
Defendant’s motion for summary judgment is DENIED, as there are one or more triable issues of material fact.
Defendant’s motion for summary adjudication as to Issue 1 regarding negligence and Issue 2 regarding negligent hiring, supervision, or retention is DENIED, as there are one or more triable issues of material fact.
As to Defendant’s evidentiary objections to the Declaration of Charol Shakeshaft, Ph.D., the objections are OVERRULED. Defendant raised 20 identical, unnumbered objections to Dr. Shakeshaft’s declaration on the basis of speculation, lack of foundation, improper opinions, impermissible conclusions of law, hearsay, and relevance. Each objection is raised to the “entirety of th[e] paragraph.” Having reviewed the paragraphs subject to objection, to wit paragraphs 6 through 13, 15 through 16, and 18 through 27, the Court finds that Dr.
Shakeshaft’s expressed opinions are relevant, within the scope of her expertise and training, and that she is qualified to express the opinions contained therein, even insofar as they may overlap with possible legal conclusions. Although Dr. Shakeshaft relies upon the declarations of other witnesses in forming some of her opinions, experts may rely on case-specific hearsay, so long as that evidence is independently admissible. Here, Plaintiff provided declarations from each of the witnesses upon whose testimony Dr.
Shakeshaft relied in forming her opinions. To the extent they are relied upon by Dr. Shakeshaft, the statements contained within the declarations are admissible evidence based on the witness’ personal knowledge.
To grant summary judgment, the court must determine from the evidence presented that “there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) “The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139
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In moving for summary judgment or in the alternative summary adjudication, Defendant asserts Plaintiff cannot establish a triable issue of material fact as to one or more elements of negligence or negligent hiring, supervision, or retention of employee.
The Court finds that there is a triable issue of material fact regarding Plaintiff’s first and second causes of action. The declaration of Dr. Shakeshaft controverts the issues of negligence and negligent hiring, supervision, or retention. The declaration, and inferences drawn therefrom, establish Defendant had a duty to protect students such as Plaintiff and had a duty to investigate the “red flag” incidents of which Defendant should have been aware. (See, Shakeshaft Decl. ¶¶ 6-27.) These duties were breached by
Defendant’s inaction, from which an inference can be drawn that the breach was a substantial cause of Plaintiff’s injuries. (See, Plaintiff’s Additional Material Facts (“AMFs”) 19-27 and evidence cited therein.)
Through admissible evidence, Plaintiff has met his burden of creating a triable issue of material fact as to the elements of negligence.
As to the motion for summary adjudication, as Plaintiff has sufficiently established the elements of negligence, Defendant’s Issue 1 has been controverted and the motion for summary adjudication as to that issue is DENIED.
As to Defendant’s Issue 2, Plaintiff has provided admissible evidence by way of Dr. Shakeshaft’s declaration sufficient to create a triable issue of material fact as to the elements for negligent hiring, supervision, or retention. Plaintiff has supported with admissible evidence the following allegations: Plumskey was an employee of Defendant; the actions of Plumskey made him unfit for his position; Defendant should have known Plumskey was unfit; Plumskey’s actions harmed Plaintiff; and Defendant’s negligence in supervising or retaining Plumskey was a substantial factor in causing Plaintiff’s injuries. (See, Plaintiff’s UMF 2, AMFs 19-27, and evidence cited therein.) Defendant’s motion for summary adjudication as to Issue 2 regarding Plaintiff’s cause of action for negligent hiring, supervision, or retention of employee cause of action is DENIED.