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Attorney for Plaintiffs
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES – NORTH CENTRAL
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11 Case No.: EC 047885

12 Plaintiffs,
SUR-REPLY TO DEFENDANT, REPLY TO
13 vs. PLAINTIFFS’ OPPOSITION TO MOTION
FOR SUMMARY JUDGMENT AND/OR
14 and DOES 1 THROUGH 100, SUMMARY ADJUDICATION
15 DATE: April 09, 2010
Defendants. TIME: 8:30AM
16 DEPT.: B
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18

19 INTRODUCTION

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21 The Plaintiffs submit this Sur-reply in response to Defendant REA 2003-1, LLC’s

22 (hereinafter “REA”) reply to Plaintiffs’ Opposition to Defendant, REA’s Motion for Summary

23 Judgment.

24 ///

25 As this Court knows, typically when a party files a motion, opposing counsel is entitled

26 to file an “Opposition”, or otherwise respond as they see fit. The moving party is in turn allowed

27 to file a “Reply”; and, unless permission is given by the court for the filing of additional briefs,

28 the parties appear at a hearing on the motion, and the court makes its ruling. However, here, the

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SUR-REPLY TO DEFENDANT, REA 2003-1, LLC’S REPLY TO PLAINTIFFS’ OPPOSITION
TO REA’S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION
 1 Plaintiffs’ are compelled to submit this Sur-reply to address the serious and extensive
2 mischaracterizations of fact and misapplications of law that are prevalent in Defendant, REA's
3 reply memorandum (Df. Reply Mem."). Although the hearing on this matter is just two days
4 away, defendants feel compelled to set the record straight on several points.
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6 REA’S “REASONABLE FORESEEABILITY” OF EMPLOYEE

7 MISCONDUCT CAN BE INFERRED FROM THEIR POLICY AND
8 PROCEDURE MEMORANDUM INVOKING THE PROHIBITED AND
9 COMPLAINED OF CONDUCT
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11 REA argues that “… REA’s policy is not “evidence” of the reasonable foreseeability of the
12 alleged conduct.” (REA Reply, 5:lines 9-10) Arguably, if one were looking solely for direct
13 evidence, e.g., employee’s history of a propensity toward violence, there may be some merit to

14 this point. However, under summary judgment law in ruling on [a] motion, the court must

15 "consider all of the evidence" and "all of the inferences" reasonably drawn therefrom (C.C.P.§

16 437c, subd. (c)), and must view such evidence (Aguilar v. Atlantic Richfield Company (2001) 25

17 Cal.4th 826, 857, 24 P.3d 493, 107 Cal. Rptr.2d 841, citing, (e.g., Molko v. Holy Spirit Assn., 46

18 Cal. 3d at p. 1107; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal. 2d 412, 417 [42

19 Cal. Rptr. 449, 398 P.2d 785]) and such inferences (see, e.g., Crouse v. Brobeck, Phleger &

20 Harrison (1998) 67 Cal. App. 4th 1509, 1520 [80 Cal. Rptr. 2d 94] [review on appeal]; Ales-

21 Peratis Foods Internat., Inc. v. American Can Co. (1985) 164 Cal. App. 3d 277, 280, [209 Cal.

22 Rptr. 917]), in the light most favorable to the opposing party. (underlying added) REA’s

23 argument conveniently skips over this important aspect.

24 ///

25 A reasonable juror may very well deduce from such an existing policy and procedure

26 memorandum, which is allegedly given to all employees, the inference that this memo was

27 generated because REA reasonably foresaw that security personnel might be moved to get

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SUR-REPLY TO DEFENDANT, REA 2003-1, LLC’S REPLY TO PLAINTIFFS’ OPPOSITION
TO REA’S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION
 1 physical with patrons under certain circumstances and establishing a hands-off policy would
2 direct address that foreseeable prohibited act.
3 Accordingly, REA’s policy and procedure memorandum is evidence from which a trier
4 of fact can draw an inference of “reasonable foreseeability” of the alleged misconduct by their
5 employees and therein establishing a triable issue of material fact.
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7 SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

8 SHOULD BE DENIED BECAUSE REA FAILED TO MEET ITS BURDEN
9 OF PRODUCTION UNDER SUMMARY JUDGMENT LAW BY FAILING
10 TO MAKE A PRIMA FACIE SHOWING THAT REA DID NOT RATIFY
11 THE MISCONDUCT OF ITS EMPLOYEES
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13 Under summary judgment law a moving defendant must present evidence showing

14 the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The

15 defendant must show that the plaintiff does not possess needed evidence, because otherwise the

16 plaintiff might be able to establish the elements of the cause of action; the defendant must also

17 show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must

18 be allowed a reasonable opportunity to oppose the motion ( Code Civ. Proc., § 437c, subd. (h)).

19 REA attempts to argue that “once the moving defendant shows that the plaintiff’s claim

20 has no merit, the burden of proving that a triable issue of fact still exists shifts to the plaintiff.”

21 However, this misstates the burden shifting aspect of summary judgment law.

22 From commencement to conclusion, the moving party bears the burden of persuasion that

23 there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.

24 (Aguilar 25 Cal.4th at 845) Further, the Aguilar court held that “Summary judgment law in this

25 state…require[s] a defendant moving for summary judgment to present evidence, and not simply

26 point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.

27 (Id.at ) Also, the Court in Fairbank v. Wunderman Cato Johnson (9th Cir. 2000) 212 F.3d 528

28 concluded, the defendant must indeed present evidence": Whereas, under federal law,

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SUR-REPLY TO DEFENDANT, REA 2003-1, LLC’S REPLY TO PLAINTIFFS’ OPPOSITION
TO REA’S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION
 1 "pointing out through argument" ( id. at p. 532) may be sufficient, under state law, it is not.
2 (Aguilar citing, (see generally Schwarzer et al., Cal. Practice Guide: Federal Civil Procedure
3 Before Trial (The Rutter Group 2001) PP 14:137 to 14:137.6, pp. 14-32 to 14-33 [setting out the
4 "disagree[ment]" of the "[c]ourts" on the issue]) (emphasis and underlining added)
5 Clearly, REA is “pointing out through argument” on the issue of ratification; applying the
6 federal standard, not the state standard that requires the presentment of admissible evidence in
7 order to carry their burden, which will then, and only then, shift the burden of production to
8 Plaintiffs. Based upon defendant’s anemic and evidence deficient argument on the issue of
9 ratification, REA has not met its burden therefore summary judgment should not be granted.
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11 UNDER SUMMARY JUDGMENT LAW THE OPPOSING PARTY’S

12 (PLAINTIFFS HERE) BURDEN IS NOT ONE OF PROOF; IT IS A
13 BURDEN OF PRODUCTION OF EVIDENCE SHOWING A TRIABLE

14 ISSUE OF MATERIAL FACT

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16 REA argues that “…plaintiffs have [ ] failed to meet their burden of proving severe

17 emotional distress.” This is not the burden an opposing party plaintiff must meet. Under

18 summary judgment law, a plaintiff opposing defendant’s motion need only produce evidence

19 that would require a reasonable trier of fact to find any underlying material fact more likely than

20 not.” (Aguilar, supra. at 845)

21 Particularly telling is that REA concedes in its Reply that the Plaintiffs presented

22 evidence of physical and mental injury. (Reply, 8:lines10-12) But REA tries divert the Court

23 away from any inferences of severe emotional distress that may be drawn from other evidence

24 produced by Plaintiffs that include reports of headaches, sleep disorder, paranoia, loss of

25 consciousness, being scared, concussion to head and constant headaches; all components of

26 severe emotional distress inherent with the physical beating Plaintiffs endured at the hands and

27 feet of REA’s employees.

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SUR-REPLY TO DEFENDANT, REA 2003-1, LLC’S REPLY TO PLAINTIFFS’ OPPOSITION
TO REA’S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION
 1 The above listed symptoms are far more significant symptoms indicative of severe
2 emotional distress than the characterizations REA proffered in their Reply, to wit, “… assertions
3 [of] discomfort, worry, anxiety, upset stomach, concern, and agitation.”
4 Thus, having met the proper burden of production pertaining to this element, REA’s
5 motion for summary judgment must be denied.
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7 CONCLUSION
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For the aforementioned reasons Plaintiffs ask that REA’s Motion for Summary Judgment
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10 and/or Summary Adjudication be denied so that its case may be properly and justly tried on its

11 merits.
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Dated: April 07, 2010
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Attorney for Plaintiffs
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SUR-REPLY TO DEFENDANT, REA 2003-1, LLC’S REPLY TO PLAINTIFFS’ OPPOSITION
TO REA’S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION