For Judicial Use Only

Tags Motion

CONFIDENTIAL MEMORANDUM

FOR JUDICIAL USE ONLY

Monica L. Scheetz

work 657.622.7071 · · cell 213.819.5853

Name:Thomas v. Smith

Date:11/09/11Dept.:19

Cal. No.:7Case No.:2007-100028

Motion 1:Motion for Separate Trial

Motion 2:Motion for Abatement of Pending Motions

Motion 3:Motion for Judgment on the Pleadings

Movants:Defendant Brenda C. Smith, an individual and attorney in fact for Defendant Marvin Vernis Smith

Respondents:Plaintiff Bennie Thomas, individually and as co-administrator of the estate of Minnie L. Smith

Date:timely filed 10/17/11; service ok

Opp.:timely filed

Reply:none

FACTS/OVERVIEW:

Minnie L. Smith died on 12/15/06, the victim of homicide. Ms. Smith’s husband, Defendant Marvin Vernis Smith, was convicted of her murder. Ms. Smith’s son, Plaintiff Bennie Thomas, brought this suit individually and as the co-administrator of Minnie Smith’s estate. The operative complaint alleges three causes of action: (1) wrongful death, (2) exemplary damages pursuant to Cal. Civ. Code § 3294(d), and (3) a constructive trust pursuant to Cal. Civ. Code §§ 2223 and 2224. .

RELIEF SOUGHT:

Pursuant to CCP § 437c, Plaintiffs seek summary adjudication of the first and second causes of action. Specifically, Plaintiffs ask the Court to find (1) that Defendant Marvin Vernis Smith is liable for Minnie Smith’s wrongful death, and (2) that Plaintiffs are entitled to punitive damages such that trial. If the Court makes these findings, then trial will concern the amount of damages only.

REQUEST FOR JUDICIAL NOTICE

Plaintiff asks the Court to take judicial notice of the following: (1) the entire docket report in People v. Smith, Case No. 07CV1791, (2) a minute order dated March 21, 2008, concerning sentencing in the above-named case; and (3) all documents relating to the verdict rendered by the jury in the above-named case. Pursuant to Cal. Evid. Code §§ 452 and 453, the request should be granted as to the first two matters. The Court should deny the request as to the third matter, as the terminology “all documents relating to the verdict rendered by the jury” is vague and ambiguous, and Plaintiffs do not specify that they have submitted “all” documents relating to the verdict rendered by the jury with their request for judicial notice. However, Plaintiffs have submitted certain court records, which comprise Exhibit D to the concurrently filed declaration of Casey Johnson, and the Court can take judicial notice of those records.

MP CONTENTIONS:

In a jury trial, Defendant Marvin Smith was found guilty of murdering Minnie L. Smith. He was sentenced to 25 years to life for the crime. He admitted these facts in his verified answer to the FAC. Pursuant to Evidence Code §§ 452.5 and 1300, his conviction is admissible to show he did, in fact, murder Minnie Smith. The fact that the murder conviction is on appeal is irrelevant.[1] See In re Peterson (2007) 156 Cal. App. 4th 676, 696.

Under CCP §377.60, a homicide is considered a wrongful death. See Gilmore v. Supt. Ct. (1991) 230 Cal. App. 3d 416, 420. Under Cal. Civ. Code § 3294(d), which specifically cover homicide, Plaintiffs are entitled to punitive damages.

RP CONTENTIONS:

Defendants did not file an opposition.

ANALYSIS:

Legal Standard

A “party moving for summary judgment [or adjudication] bears an 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 26, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. A plaintiff moving for summary judgment or adjudication satisfies its initial burden by proving each element of the cause of action(s). CCP § 437c(p)(1). Once a plaintiff meets that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists to the cause of action or a defense. Id.

First Cause of Action (Wrongful Death)

A murder conviction is prima facie evidence of a wrongful death. See In re Peterson (2007) 156 Cal. App. 4th 676, 695-96; Gilmore v. Supt. Ct. (1991) 230 Cal. App. 3d 416, 420; CCP § 377.60; Cal. Evid. Code § 1300. Certified court records are admissible to prove a criminal conviction. See CCP § 452.5. Here, Plaintiffs have submitted court records showing that Defendant Marvin Vernis Smith was convicted of murdering Minnie Smith pursuant to Cal. Penal Code § 187(a). (See Johnson Decl. Exs. C-D.)

The above evidence is sufficient to meet Plaintiffs’ burden on summary adjudication of the first cause of action (wrongful death). Defendants have failed to submit any opposition or any conflicting evidence. Thus, Defendants have failed to meet their burden of showing the existence of a triable issue of fact. Accordingly, Plaintiffs are entitled to summary adjudication of the first cause of action in their favor.

Second Cause of Action (Punitive Damages)

Under Cal. Civ. Code § 3294(d), a plaintiff may recover punitive damages in a wrongful death action brought pursuant to CCP § 377.060 where the death was the result of homicide. Because Plaintiffs have met their burden of proof with regard to proving Minnie Smith’s death was the result of a wrongful act of homicide, a fortiori, Plaintiffs are entitled to punitive damages pursuant to Cal. Civ. Code § 3294(d).

RECOMMENDED RULING:

Plaintiffs’ motion for summary adjudication of the first and second causes of action is granted.

[1] The moving papers in this case were filed in 2009, and the hearing on the motion for summary adjudication was continued in order to give the Court of Appeal time to render an opinion on the criminal conviction of Defendant Marvin Vernis Smith. (See 11/24/10 Ex Parte Application and Stipulation to Continue Trial ¶ 3.) The appeal should be decided by now.