Opinion
A150161
09-21-2017
LI CHING CHU ET AL., Plaintiffs and Appellants, v. JOSEPH VIERRA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tribal Technologies, Inc., a software company in San Mateo. She was found dead at her workplace on October 21, 2010, after an unwitnessed fall from a balcony onto a second story roof. The coroner ultimately ruled the death was accidental.
Cindy's parents, appellants Li Ching Chu and Robert Ching Liang Hung (plaintiffs), believe their daughter was murdered by two employees of Tribal Technologies, defendants and respondents 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 Rules of Court, rule 8.1115(b)(1) [prior unpublished opinions may be cited as law of the case].)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 negligence against Vierra and Dinovich. Vierra and Dinovich 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.
In support of his motion, Vierra and Dinovich presented numerous discovery responses in which, when asked for evidence to support their claims, plaintiffs responded: "Premature. Information is in the possession of defendant. It is defendant who murdered Cindy. Defendant knows exactly what he[/she] did." Also included as evidence was the autopsy report, in which the coroner concluded Cindy's death was accidental. (See 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].)
Plaintiffs filed opposition papers presenting no additional evidence, but were granted a continuance of the hearing to allow them to conduct additional discovery, including: (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 discovery requests did not yield any evidence supporting plaintiffs' claims and motions to compel additional discovery were denied. The trial court granted the motion for summary judgment based on plaintiffs failure to produce any evidence in support of their claims.
Having reviewed the trial court's order de novo (Collin v. Calportland Co. (2014) 228 Cal.App.4th 582, 588), we conclude that summary judgment was properly granted. A defendant is entitled to summary judgment if he or she establishes a cause of action has no merit, in that "one or more of the 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), (o)(2).) As the moving parties on the motion for summary judgment, Vierra and Dinovich 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 claim that Cindy's death was a murder rather than an accident, but instead stated that such evidence was in the possession of Vierra and Dinovich, who knew what they did. "[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.)
Accordingly, the burden 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 facts 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.