Sacramento-Area Radio Station Sued For Fatal Contest, Part 2 of 6

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)

Because Defendants Offer Insufficient Undisputed Material Facts to Shift the Burden to Plaintiff, the Motion Must Fail

The party moving for summary adjudication must show that plaintiff cannot establish an essential element for a cause of action. C.C.P. §437c(p)(2). As a threshold, the moving party must show, that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.C.P. §437c(c) (emphasis added). Here, of the 34 undisputed material facts proffered by Defendants, only three are undisputed. Of the remaining 31 facts, four are disputed as irrelevant. The balance of 27 material facts are each disputed on substantive, material grounds. In addition, Plaintiffs offer 45 disputed material facts that bear directly on the severe, clinical and chronic emotional distress and related psychological injuries suffered by each of them. Because Defendants fall far short of the threshold burden to demonstrate there is no triable issue as to any of the material facts offered in support of summary adjudication, the motion must fail.

Defendants Cannot Establish the Absence of Disputed, Material Facts in Light of Plaintiffs’ Showing of Severe Emotional Harm and Psychological Distress

Defendants cite Fletcher v. Western Nat. Life Ins. Co. (1970) Cal.App.3d 376, 396-397 for the proposition that, it is the court that determines whether, on the evidence, severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. They aver that to prove intentional infliction of emotional distress, plaintiffs, must show they suffered severe emotional distress. Motion, 7:16-17, citing Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903. Defendants refer to civil jury instructions which defines severe emotional distress as a condition which is, not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it. Motion, 7:20-23, citing California Jury Instruction 1604. Defendants identify that courts have traditionally considered factors like intensity; duration; and psychological manifestations of emotional distress when determining severity. Motion, 7:23-8:4, citations omitted. Against any backdrop articulated by Radio, it is clear that each of the Smith Plaintiffs have suffered severe emotional distress due to the wrongful death of their co-contestant.

All three have been diagnosed with Post Traumatic Stress Disorder (hereinafter, “PTSD” ). This diagnosis was not made by an attorney based on superficial questioning of each plaintiff during deposition, but following a comprehensive clinical evaluation conducted by Dr. Diana Everstine, a psychologist who specializes in the diagnosis and treatment of trauma survivors. All three are currently being treated for this and other conditions by licensed therapists, psychiatrists or both. In the case of Mike Jones, his treating therapist has also diagnosed PTSD.

Because of the severity of their emotional injuries, Paul Smith and Steve Davis are being treated by therapists. In addition, Mr. Jones is being treated by a psychiatrist for medical management (i.e., prescription medication including Lexapro and Valium) for his emotional state. Mr. Smith has been referred to a psychiatrist at Kaiser, also for medical management. Mr. Davis is being treated for extreme anxiety and emotional disorder by psychiatrist Michael Lin, M.D., who has prescribed medications. (See Part 3 of 6.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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