Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)
As to the motion attacking Plaintiff’s claim of wilful misconduct, XYZ Care fails in the fundamental purpose of providing Plaintiff of any form of notice as to the issues presented by the motion for summary adjudication. The issue, as set forth (“plaintiffs have no evidence that moving defendant committed any intentional wrongful conduct toward plaintiffs’ decedent”) is too broadly stated to provide any meaningful notice which would comply with the due process aspect of the separate statement as expressed in Elcome and San Diego Watercrafts, supra. Defendants’ initial burden in bringing a motion for summary adjudication is to show that one or more elements of claim cannot be established. Marron, supra.
Accordingly, in compliance with the obligation of the moving party to provide adequate notice, in the notice of motion and Separate Statement, it is incumbent to frame the issues in such a manner that Plaintiffs are informed what element or elements of the claim Defendant asserts the purported undisputed facts prove cannot be established. Otherwise, Plaintiffs (and the court) is left to speculate what element of the claim (i.e., what element of Wilful Misconduct, – duty, breach, knowledge of peril, knowledge of probable injury, failure to avoid peril, causation or damages) is under scrutiny, and for which opposing evidence must be presented.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Ultimately, by over broadly phrasing the issue as Defendant has done, the only response Plaintiffs can safely offer is to present evidence on each element of their claim. Plaintiffs should not be required to meet such a burden. Instead, under the law, the burden is upon Defendants to set forth the issue in their separate statement in such a manner which fully advises Plaintiffs (and the court) of the issues to be addressed. San Diego Watercrafts, supra. Defendant’s separate statement in this case, as to the claim for wilful misconduct, is defective and fail to meet that burden, and accordingly, the motion should be summarily denied.
CONCLUSION
For the foregoing reasons, it is submitted that the motion should in all respects be denied.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.