Moran v. Swift CA6

Filed 10/21/13 Moran v. Swift CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

EDUARDO MORAN, a Minor, etc., et al., H037435 (Santa Cruz County Plaintiffs and Appellants, Super. Ct. No. CV166157)

v.

PAMELA SWIFT,

Defendant and Respondent.

Appellants Eduardo Moran and three other minors challenge the superior court‟s grant of summary judgment to defendant Pamela Swift in their tort action against her. The court found that there were no triable issues of fact as to the absence of proof of injury or harm. We find no error and affirm the judgment.

I. Background Appellants filed an action against Swift in which they alleged two causes of 1 action: one for battery, and one for negligence. In June 2011, Swift brought a motion for summary judgment asserting, among other things, that appellants could not produce

1 The appellate record does not include a copy of the complaint. We glean this information about the nature of the causes of action from the pleadings on the summary judgment motion.

any evidence that they had “suffered any injury or harm” and therefore could not prevail on either cause of action. Swift asserted in her separate statement that it was undisputed that all four appellants “do[] not speak or write.” She also asserted that it was undisputed that: “Plaintiffs have not sought or received any treatment for any physical or mental injuries;” “There are no documents depicting any injuries;” and “Plaintiffs have not suffered any loss of income or earning capacity.” These undisputed facts were based on appellants‟ responses to form interrogatories and their responses to a request for production. Appellants opposed Swift‟s summary judgment motion. They agreed that these facts were undisputed, and their separate statement did not include any facts addressing the “injury or harm” issue. When the court invited appellants to submit additional evidence on this issue, they submitted declarations from appellants‟ parents that contradicted their prior deposition testimony. “[A] party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.) Swift objected to the declarations on this basis, and the court sustained the objection and refused to consider these declarations. At the hearing on the motion, the court noted the absence of any evidence of injury or harm. “[Appellants‟ parents] acknowledge [in their deposition testimony] that they have no idea what impact the actions of the defendant would have had upon their children. There are no medical records in this matter. There are no doctor‟s findings. There‟s no medical treatment. . . . [I]t‟s purely speculative on the part of the parents as to whether there‟s any causal connection between the defendant‟s actions or alleged actions and the children‟s responses.” “[I]t‟s not going to come through the parents. And tragically and unfortunately, it can‟t come through the children. And it‟s not going to come through any of the medical providers because none of them have offered any review or examination of these kids in relationship to these matters.” “I don‟t see any way based on the evidence I have in this file as to how this case gets to a jury. . . . [¶]