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V V
ROBERT W. THOMPSON, Esq. (SBN 10641 1)
JIWON MICHAEL SHIN, Esq. (SBN 318474)
CALLAHAN, THOMPSON, SHERMAN
& CAUDILL, LLP
2601 Main 800
Street, Suite
92614
Irvine, California SUPERIngcéUlfi-rgl:EAUFQRNIA
T l: 949 261-2872 0F SAN BERNARDINO
CSEnTEYERNARowo DISTRICT
sz: E9493 261-6060
Email: rthorppsonchtsclawcom FEB 1 7 2022
msh1n@ctsclaw.com
Attorneys for Defendant,
BY
SUNRISE FORD, INC. ROBWKW’BER, DEPUTY
n
SUPERIOR COURT OF CALIFORNIA FAX“:
10 COUNTY OF SAN BERNARDINO
UP
11
BILLY HENRY, Case No.2 CIVDSl 822222
(?\LSDHJ,
12 C.
&
13 JUDGE: Hon. Khymberli S. Apaloo
SHERMAN Plaintiff, DEPARTMENT: 825
@801an 14 COMPLAINT DATE: August 23, 201 8
vs.
)MPSKN
15 DEFENDANT SUNRISE FORD, INC.’S
SUNRISE FORD, INC.; FORD MOTOR REPLY IN SUPPORT OF MOTION FOR
TH
16 COMPANY; FORD MOTOR CREDIT SUMMARY JUDGMENT OR, IN THE
{AN
A1
COMPANY; and DOES through 50, 1 ALTERNATIVE, FOR SUMMARY
(IJALI
17 inclusive, ADJUDICATION
18 Date: February 22, 2022
Defendants. Time: 9:00 a.m.
19 Location: Dept. $25
20
Defendant, SUNRISE FORD, Inc. (“Defendant”) hereby submits the following Reply t0
21
22 Plaintiff BILLY C. HENRY’S Opposition to Defendant Sunrise Ford, Inc.’s Motion for Summary
23 Judgment, or in the Alternative, Summary Adjudication.
24 MEMORANDUM 0F POINTS AND AUTHORITIES
25 I. INTRODUCTION
26 Plaintiff’s Opposition fails to provide any evidence to dispute the material facts in support
0f Defendant’s Motion. As a result, Plaintiff resorts t0 submitting an improper, self—serving
27
28 Declaration containing statements that clearly contradicts Plaintiff’s earlier deposition testimony in
_ 1 _
DEFENDANT SUNRISE FORD, MOTION FOR SUMMARY JUDGMENT OR,
INC.’S IN THE ALTERNATIVE,
FOR SUMMARY ADJUDICATION
this action, in order t0 fabricate the existence of a triable issue of fact. Plaintiff also attempts to
distract this Court from the facts and issues that are material t0 the Parties’ claims and defenses, by
focusing the Court’s attention on tangential issues and facts that are irrelevant. Lastly, when all else
UI-PUJN
fails, Plaintiff unsuccessfully attacks the admissibility of Defendant’s evidence.
II. PLAINTIFF’S DECLARATION SHOULD BE DISREGARDED. BECAUSE IT
CONTAINS STATEMENTS THAT CONTRADICT PLAINTIFF’S EARLIER
DEPOSITION TESTIMONY.
\OOOVON
It is well-established that “a party cannot create an issue 0f fact by a declaration which
contradicts his prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12, 64
10 Cal.Rptr.3d 803, 165 P.3d 581; see Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451,
UJ’
11 16 Cal.Rptr.2d 320 [“A party cannot create an issue of fact by a declaration which contradicts his
)lLL
IAUI
12 prior pleadings”].) In determining whether any triable issue of material fact exists, the trial court
(
&
13 may give “great weight” to admissions made in discovery and “disregard contradictory and self-
mlaw SI‘IERMAN
14 serving affidavits of the party.” (Preach v. Monter Rainbow, supra, 12 Cal.App.4th at p. 1451, 16
N
)MI‘EX
15 Cal.Rptr.2d 320.) Our Supreme Court has explained that such admissions “have a very high
TPK
16 credibility value,” particularly when they are “obtained not in the normal course of human activities
"IAN
(..IAlJ./\l
17 and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.”
18 (D’Amz'co v. Board ofMedical Examiners (1974) 11 Cal.3d 1, 22, 112 Cal.Rptr. 786, 520 P.2d 10.)
19 “Accordingly, when such an admission becomes relevant t0 the determination, 0n motion for
20 summary judgment, of whether or not there exist triable issues 0f fact (as opposed to legal issues)
21 between the parties, it is entitled to and should receive a kind of deference not normally accorded
22 evidentiary allegations in affidavits.” (Ibid.) Where a declaration submitted in opposition to a motion
23 for summary judgment motion clearly contradicts the declarant's earlier deposition testimony or
“
24 discovery responses, the trial court may fairly disregard the declaration and “conclude there is no
”
25 substantial evidence of the existence of a triable issue of fact.’ (Id. at p. 21, 112 Cal.Rptr. 786, 520
26 P.2d 10.)
27 Plaintiff’s evidence to dispute Defendant’s UMFs is primarily his own self-serving
28 declaration that contains numerous contradictions to his earlier deposition testimony. For example,
DEFENDANT SUNRISE FORD, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
FOR SUMMARY ADJUDICATION
Preview
V V ROBERT W. THOMPSON, Esq. (SBN 10641 1) JIWON MICHAEL SHIN, Esq. (SBN 318474) CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP 2601 Main 800 Street, Suite 92614 Irvine, California SUPERIngcéUlfi-rgl:EAUFQRNIA T l: 949 261-2872 0F SAN BERNARDINO CSEnTEYERNARowo DISTRICT sz: E9493 261-6060 Email: rthorppsonchtsclawcom FEB 1 7 2022 msh1n@ctsclaw.com Attorneys for Defendant, BY SUNRISE FORD, INC. ROBWKW’BER, DEPUTY n SUPERIOR COURT OF CALIFORNIA FAX“: 10 COUNTY OF SAN BERNARDINO UP 11 BILLY HENRY, Case No.2 CIVDSl 822222 (?\LSDHJ, 12 C. & 13 JUDGE: Hon. Khymberli S. Apaloo SHERMAN Plaintiff, DEPARTMENT: 825 @801an 14 COMPLAINT DATE: August 23, 201 8 vs. )MPSKN 15 DEFENDANT SUNRISE FORD, INC.’S SUNRISE FORD, INC.; FORD MOTOR REPLY IN SUPPORT OF MOTION FOR TH 16 COMPANY; FORD MOTOR CREDIT SUMMARY JUDGMENT OR, IN THE {AN A1 COMPANY; and DOES through 50, 1 ALTERNATIVE, FOR SUMMARY (IJALI 17 inclusive, ADJUDICATION 18 Date: February 22, 2022 Defendants. Time: 9:00 a.m. 19 Location: Dept. $25 20 Defendant, SUNRISE FORD, Inc. (“Defendant”) hereby submits the following Reply t0 21 22 Plaintiff BILLY C. HENRY’S Opposition to Defendant Sunrise Ford, Inc.’s Motion for Summary 23 Judgment, or in the Alternative, Summary Adjudication. 24 MEMORANDUM 0F POINTS AND AUTHORITIES 25 I. INTRODUCTION 26 Plaintiff’s Opposition fails to provide any evidence to dispute the material facts in support 0f Defendant’s Motion. As a result, Plaintiff resorts t0 submitting an improper, self—serving 27 28 Declaration containing statements that clearly contradicts Plaintiff’s earlier deposition testimony in _ 1 _ DEFENDANT SUNRISE FORD, MOTION FOR SUMMARY JUDGMENT OR, INC.’S IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION this action, in order t0 fabricate the existence of a triable issue of fact. Plaintiff also attempts to distract this Court from the facts and issues that are material t0 the Parties’ claims and defenses, by focusing the Court’s attention on tangential issues and facts that are irrelevant. Lastly, when all else UI-PUJN fails, Plaintiff unsuccessfully attacks the admissibility of Defendant’s evidence. II. PLAINTIFF’S DECLARATION SHOULD BE DISREGARDED. BECAUSE IT CONTAINS STATEMENTS THAT CONTRADICT PLAINTIFF’S EARLIER DEPOSITION TESTIMONY. \OOOVON It is well-established that “a party cannot create an issue 0f fact by a declaration which contradicts his prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12, 64 10 Cal.Rptr.3d 803, 165 P.3d 581; see Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451, UJ’ 11 16 Cal.Rptr.2d 320 [“A party cannot create an issue of fact by a declaration which contradicts his )lLL IAUI 12 prior pleadings”].) In determining whether any triable issue of material fact exists, the trial court ( & 13 may give “great weight” to admissions made in discovery and “disregard contradictory and self- mlaw SI‘IERMAN 14 serving affidavits of the party.” (Preach v. Monter Rainbow, supra, 12 Cal.App.4th at p. 1451, 16 N )MI‘EX 15 Cal.Rptr.2d 320.) Our Supreme Court has explained that such admissions “have a very high TPK 16 credibility value,” particularly when they are “obtained not in the normal course of human activities "IAN (..IAlJ./\l 17 and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.” 18 (D’Amz'co v. Board ofMedical Examiners (1974) 11 Cal.3d 1, 22, 112 Cal.Rptr. 786, 520 P.2d 10.) 19 “Accordingly, when such an admission becomes relevant t0 the determination, 0n motion for 20 summary judgment, of whether or not there exist triable issues 0f fact (as opposed to legal issues) 21 between the parties, it is entitled to and should receive a kind of deference not normally accorded 22 evidentiary allegations in affidavits.” (Ibid.) Where a declaration submitted in opposition to a motion 23 for summary judgment motion clearly contradicts the declarant's earlier deposition testimony or “ 24 discovery responses, the trial court may fairly disregard the declaration and “conclude there is no ” 25 substantial evidence of the existence of a triable issue of fact.’ (Id. at p. 21, 112 Cal.Rptr. 786, 520 26 P.2d 10.) 27 Plaintiff’s evidence to dispute Defendant’s UMFs is primarily his own self-serving 28 declaration that contains numerous contradictions to his earlier deposition testimony. For example, DEFENDANT SUNRISE FORD, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION