Opinion
A150064
09-21-2017
LI CHING CHU ET AL., Plaintiffs and Appellants, v. TRIBAL TECHNOLOGIES, INC., ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV508888) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Cindy K. Hung (Cindy) was employed as an independent contractor with defendant and respondent Tribal Technologies, Inc. (Tribal Technologies), a software company in San Mateo. She was found dead at her workplace on October 21, 2010. The coroner ultimately ruled the death was accidental, having been caused by an unwitnessed jump or fall from a great height to a second story roof.
Cindy's parents, appellants Li Ching Chu and Robert Ching Liang Hung (plaintiffs), believe their daughter was murdered by two employees of Tribal Technologies, Joseph Vierra (Cindy's supervisor) and Victoria Dinovich. Plaintiffs filed this lawsuit, alleging numerous causes of action against multiple defendants based on Cindy's alleged murder and a conspiracy to cover up the crime. Most of the defendants obtained judgments of dismissal at the pleading stage.
Demurrers were sustained without leave to amend as to many defendants and motions to quash service were granted as to others. The judgments entered in favor of those defendants as to whom demurrers were sustained were affirmed in prior appeals to this court, including Chu v. Martin (Feb. 29, 2016, A145317) [nonpub. opn.]; Chu v. Naik (May 26, 2015, A142837) [nonpub. opn.]; Chu v. Tribal Brands, Inc. (Mar. 12, 2015, A141730) [nonpub. opn.]; Chu v. Glenborough 400 ECR, LLC (Apr. 9, 2014, A139167) [nonpub. opn.]. (See Cal. Rules of Court, rule 8.1115(b)(1) [prior unpublished opinions may be cited as law of the case].)
As relevant here, the sixth amended complaint alleged causes of action for wrongful death and negligent supervision/retention against Tribal Technologies and its alleged alter ego, defendant and respondent Tribal Brands. Tribal Technologies and Tribal Brands filed a motion for summary judgment on the ground that plaintiffs could not establish the essential elements of their causes of action, having failed to produce any evidence during discovery that would tend to show Cindy was murdered.
The separate statement of material facts submitted in support of the summary judgment motion referenced numerous discovery responses in which, when asked for evidence to support their claims, plaintiffs indicated such evidence was in the possession of the police, the coroner, the fire department and the emergency medical technicians who responded when Cindy's body was discovered. Reports from those agencies were attached as evidence, as was the death certificate. None of these documents contained information suggesting Cindy had been murdered; to the contrary, both the coroner's report and the death certificate stated the death was accidental. Also accompanying the summary judgment motion was a declaration by Tribal Technologies CEO Jeff Martin stating there had been no previous complaints of violence or disciplinary issues regarding Vierra and Dinovich, and a declaration by defense counsel stating that plaintiffs had not produced any documents in response to multiple discovery requests and that background checks of Vierra and Dinovich revealed that neither had a criminal record.
Plaintiffs filed opposition arguing that (1) Tribal Technologies and Tribal Brands had not met their initial burden on summary judgment, and (2) a continuance should be granted to allow plaintiffs to obtain additional discovery. Plaintiffs' counsel submitted a declaration indicating discovery requests were outstanding: (1) a subpoena duces tecum served on the office building's landlord seeking visitor logs and video footage from the date of the incident; (2) interrogatories served on codefendants Vierra and Dinovich seeking information about the incident; and (3) interrogatories served on Tribal Technologies and Tribal Brands.
The court continued the hearing on the summary judgment motion, but the discovery requests did not yield any evidence supporting plaintiffs' claims and motions to compel additional discovery were denied. Ultimately, although plaintiffs filed objections to the evidence and to the separate statement of undisputed facts submitted by Tribal Technologies and Tribal Brands, they presented no affirmative evidence in opposition to the motion.
The trial court granted the motion for summary judgment, stating in its written order: "As to Plaintiffs' cause of action for wrongful death (eighth cause of action), Plaintiffs cannot establish causation. The available evidence does not support a finding that Defendant Vierra or Defendant Dinovich caused or contributed to Cindy Hung's death. [Citation.] Plaintiff's discovery responses show that they do not possess any evidence to support their claims. [Citations.] After the June 3, 2016 hearing, despite being granted the opportunity to do so, Plaintiffs conducted no discovery. The only attempts to obtain evidence were Plaintiffs' motion to enforce a subpoena against [the office building's landlord], motion to compel further interrogatory responses against Defendants Vierra and Dinovich, and a motion to compel further interrogatory responses against Tribal Technologies and Tribal Brands. All motions were denied. [¶] Under the evidence filed in support of and opposition to this motion, it is undisputed that Plaintiffs do not possess and cannot reasonably obtain evidence to support their claims against Defendants Vierra and Dinovich and, therefore, against Defendant Tribal Technologies. . . . [¶] As to Plaintiffs' cause of action for negligent supervision/retention (fifth cause of action), the undisputed material facts demonstrate that Tribal Technologies had no knowledge that Defendant Vierra or Defendant Dinovich had a propensity [or character] for violence or would commit violence or homicide against Cindy Hung. [Citations.] [¶] As to Defendant Tribal Brands, the motion is GRANTED because the only theory of liability against Tribal Brands is that it is an alter ego of Tribal Technologies."
Having reviewed the trial court's order de novo (Collin v. Calportland Co. (2014) 228 Cal.App.4th 582, 588), we agree with its analysis and conclusions. A defendant is entitled to summary judgment if it establishes a cause of action has no merit, in that "one or more elements of the cause of action, even if not separately pleaded , cannot be established" or there is "an affirmative defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) As the moving parties on the motion for summary judgment, Tribal Technologies and Tribal Brands had the "initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co., (2001) 25 Cal.4th 826, 850.) They carried this burden by citing discovery responses in which plaintiffs failed to provide any documents or other evidence in support of their claims, but instead indicated that the coroner and other public officials possessed such evidence. "[T]he defendant may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence." (Collin, at p. 587.) The coroner's report and death certificate, moreover, concluded the death was accidental. A death certificate is admissible notwithstanding the hearsay rule and is prima facie evidence of the facts stated therein; it was therefore sufficient in and of itself to shift the burden to plaintiffs to produce evidence regarding the nonaccidental nature of Cindy's death. (Health & Saf. Code, § 103550; Evid. Code, § 1281; see also People v. Wardlow (1981) 118 Cal.App.3d 375, 387-388 [autopsy report admissible under the official record exception to the hearsay rule contained in Evid. Code, § 1280].)
Accordingly, the burden then shifted to plaintiffs to raise a triable issue of fact as to whether Cindy was murdered by her coworkers. Plaintiffs failed to present any evidence to this effect in their opposition papers, instead repeating the allegations they had made in previous pleadings without providing evidence to support those allegations. A plaintiff may "not [simply] rely upon the allegations or denials of its pleadings to show that a triable issue of [one or more] material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (Code. Civ. Proc., § 437c, subd. (p)(2).) "A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof." (Collin v. Calportland Company, supra, 228 Cal.App.4th at p. 588.)
The judgment is affirmed. Respondents shall recover their costs on appeal.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.