summary adjudication motion(2)[1]

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XXX LAW GROUPNameAddressPhone

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF LOS ANGELES

WILLIAM STRANGE, an individual

Plaintiff,

vs.

JAMES WRIGLEY, an individual; and DOES

1 through 20, inclusive,

Defendants.

)))))))))))))))))))

Case No.: 2009-2-TT

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION

Judge Assigned:

Action Filed:

Trial Date:

I.

INTRODUCTORY STATEMENT

Plaintiff William Strange (“Plaintiff”) respectfully moves for Summary Adjudication

with respect to the Second Cause of Action for Battery in Plaintiff’s Amended Complaint . The

evidence is undisputed in favor of Plaintiff with respect to the battery cause of action.

A person is liable to another for battery if: 1) he or she intentionally acts to cause harmful

or offensive contact; 2) the other person did not consent to the contact; and 3) harmful or

offensive contact directly or indirectly results which caused injury, damage, or loss.


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In this case, by Defendant Wrigley firing his gun three times at Plaintiff, the natural

consequences of his acts resulted in Plaintiff’s injuries. The law presumes that a person intended

the natural and probable consequences of his or her acts. Furthermore, Plaintiff did not consent

to the harmful contact. Plaintiff honestly and in good faith believed he was entering the home of

his friend, David Cunningham, and did not expect to be shot. The circumstances surrounding

Plaintiff’s entry into Defendant Wrigley’s home demonstrate that consent was never given for

the harmful contact.

This Motion for Summary Adjudication will show that there are no triable issues of

material fact concerning the battery cause of action. Every element of battery is satisfied.

Accordingly, this Motion for Summary Adjudication should be granted for Plaintiff.

II.

PRINCIPLES REGARDING SUMMARY ADJUDICATION

California Code of Civil Procedure Section 437c, subdivision (c) (2009) sets forth the

standard for summary adjudication: “The motion for summary [adjudication] shall be granted if

all the papers submitted show that there is no triable issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Also, “[i]n determining whether the

papers show that there is no triable issue as to any material fact the court shall consider all of the

evidence set forth in the papers…” (Code Civ. P. § 437c, subd. (c).)

Furthermore, Section 437c, subd. (f)(1) of the Code, provides that a party may move for

summary adjudication “as to one or more causes of action within an action” and that “a motion

for summary adjudication shall be granted only if it completely disposes of a cause of action…”


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A plaintiff moving for summary adjudication bears the initial burden “of showing that

there is no defense to a cause of action if that party has proved each element of the cause of

action entitling the party to judgment on that cause of action.” (Union Bank v. Superior Court

(1995) 31 Cal. App. 4th 573, 583.) Once this burden is met, the burden shifts to the defendant to

show that a triable issue of material fact exists to the defense, supported by evidence of specific

facts. (Code Civ. P. § 437c, subd. (o)(1); Aguilar v. Atlantic Richfield Co. (2000) 25 Cal. 4th

826, 849-51.) In determining the existence of a triable issue of material fact, the moving party’s

evidence is strictly construed, while the responding party’s evidence is liberally construed.

(D’Amico v. Board of Medical Examiners (1974) 11 Cal. 2d 1, 21.)

III.BACKGROUND FACTS

On May 19, 2008 at approximately 12:30 a.m. Defendant Wrigley observed Plaintiff

walk up the front walkway of Defendant Wrigley’s home. Defendant Wrigley did not see any

weapons on Plaintiff’s person at this time. (Undisputed Material Facts (“UMF”) 15.) Plaintiff

was looking for his friend, David Cunningham’s house, in the Walden Gardens Subdivision in

Nita City, the same subdivision where Defendant Wrigley’s house is located. Mr. Cunningham

had promised to leave his front porch light on, and his front door unlocked for Plaintiff.

Defendant Wrigley also left his front porch light on and his front door unlocked on this night.

Mr. Cunningham resided at 2416 Lilly Avenue, Nita City, in the Walden Gardens Subdivision

and Defendant Wrigley resided at 2416 Lilac Avenue, Nita City, in the Walden Gardens

Subdivision. Due to the similarity of street names and identical street numbers, people often

mistake the addresses of Defendant Wrigley and Mr. Cunningham. (UMF 2 (a) –(f).)


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As Plaintiff entered Defendant Wrigley’s home, Defendant Wrigley took his loaded gun

from the drawer he kept it in, and removed it from the holster. (UMF 3.) Plaintiff was not in

possession of any weapons as he walked onto and entered Defendant Wrigley’s property. (UMF

17.) When Plaintiff was in the doorway of Defendant Wrigley’s home, Defendant Wrigley did

not see any weapons on Plaintiff’s person. (UMF 16.)

Upon entering Defendant Wrigley’s home Plaintiff called out “Hello.” Defendant

Wrigley aimed his gun at Plaintiff and fired the first shot at Plaintiff, which hit Plaintiff in the

front of his right leg. (UMF 4.) Defendant Wrigley then shot at Plaintiff two more times, and hit

Plaintiff in the back of his right leg with his third shot. (UMF 5.) Defendant Wrigley’s second

shot missed Plaintiff only because Plaintiff moved. (UMF 6.)

At all times Plaintiff acted in a reasonable manner to make his presence known to the

occupants of the property, and Plaintiff’s actions did not pose a threat to the occupants of the

property. (UMF 18.)

IV.

ARGUMENT

Battery is the intentional, unlawful, and harmful or offensive contact with the person of

another. (Piedra v. Dugan (2004) 123 Cal. App. 4th1483; Barbara A. v. John G. (1983) 145 Cal.

App. 3d 369; Delia S. v. Torres (1982) 134 Cal. App. 3d 471 (overruled on other grounds in

Christensen v. Superior Court (1991) 54 Cal. 3d 868).) California Penal Code Section 240

defines battery as “any willful and unlawful use of force or violence upon the person of another.”

This definition has been deemed applicable to tort cases. (Fraguglia v. Sala (1936) 17 Cal. App.

2d 738, 742.) A person is liable to another for battery, therefore, if 1) he or she intentionally acts


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to cause harmful or offensive contact with the person; 2) the person did not consent to the

contact; and 3) a harmful or offensive contact with the person directly or indirectly results which

caused injury, damage, or loss. (See Barough v. Haberman (1994) 26 Cal. App. 4th 40.)

A. DEFENDANT WRIGLEY ACTED WITH THE INTENT TO CAUSE A HARMFUL CONTACT WITH PLAINTIFF WHEN DEFENDANT WRIGLEY SHOT AT PLAINTIFF THREE TIMES.

The element of intent for a battery cause of action is satisfied where the defendant

intended to do the particular act which caused the harm. (Singer v. Marx (1956) 144 Cal. App.

2d 637.)

Courts have found intent to cause harmful or offensive contact with a person where

defendant hit plaintiff on the side of the head (Brown v. Ransweiler (2009) 171 Cal. App. 4th

516); where a defendant shot a bow and arrow and hit plaintiff in the eye (Weisbart v. Flohr

(1968) 260 Cal. App. 2d 281); and where defendant threw a rock at plaintiff (Singer, supra 144

Cal. App. 2d 637). In the above-entitled cases whether the defendants intended to cause any

injury to the plaintiff was not in issue. The issue of intent for battery is whether the defendant

intended to do the act that caused the harmful contact with plaintiff.

“The general rule is that every person is presumed to intend the natural and probable

consequences of his or her acts.” (Lopez v. Surchia (1952) 112 Cal. App. 2d 314, 318.) In

Lopez, supra, the court held that the defendant was liable for battery for gunshot wounds even

though he did not intend to injure the plaintiff by firing his gun. (112 Cal. App. 2d 314.)

In Brown v. Ransweiler, the court affirmed summary adjudication on a battery cause of

action where a police officer’s bullet struck a bystander in his attempt to apprehend a murder

suspect. (171 Cal. App. 4th 516.) The court pointed out that the officer’s use of force was not


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unreasonable under the circumstances and that plaintiff had failed to raise any triable issue of

fact. (Id.)

The facts of this case differ significantly from those in Brown, supra. The defendant in

Brown was a police officer, acting in the line of duty in pursuit of a known murder suspect.

Defendant Wrigley, by contrast, was a civilian who used deadly force against Plaintiff, who was

unarmed and posed no threat. (UMF 17-18.)

This case is more akin to Lopez, supra. (112 Cal. App. 2d 314.) Defendant Wrigley, in

firing his gun at Plaintiff three times, intended to cause a harmful contact with Plaintiff. Two of

those three gunshots struck Plaintiff in his right leg. (UMF 8-9.) Case law clearly establishes

that the element of intent for a battery cause of action is satisfied where the defendant intended to

do the act that caused the harm. Defendant Wrigley intended to fire his gun at Plaintiff, as he

discharged his weapon three times. (UMF 4-6.) The first bullet struck Plaintiff in the front of

his right leg. (UMF 8.) Despite Plaintiff attempting to retreat from Defendant Wrigley’s home,

Defendant Wrigley shot at Plaintiff twice more. (UMF 5.) The third bullet that Defendant

Wrigley fired, struck Plaintiff in the back of his right leg, incapacitating him. (UMF 9.) It was

only at this point that Defendant Wrigley ceased fire. Defendant Wrigley’ s use of a gun,

moreover, is willful and unlawful force and violence upon Plaintiff as defined under Penal Code

§ 240.

Under the established law in California, there is no triable issue as to Defendant

Wrigley’s intent to fire his gun at Plaintiff.

B. PLAINTIFF DID NOT CONSENT TO BEING SHOT AT THREE TIMES BY DEFENDANT WRIGLEY OR TO THE HARMFUL CONTACT THAT RESULTED FROM THE GUNSHOTS.


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Plaintiff must plead facts sufficient to show an absence of informed consent to the

particular harmful contact. (Rains v. Superior Court (1984) 150 Cal. App. 3d 933.) Consent has

been defined as “willingness in fact for conduct to occur. It may be manifested by action or

inaction and need not be communicated to the actor.” (Restatement (Second) of Torts Section

892(1), (2) (1965).) In essence, a plaintiff’s consent acts to negate the existence for a claim of

battery, although it is not necessarily a privilege or defense. (Restat. 2d of Torts, §§ 49-62, 892-

892D.) A defendant may not rely on a plaintiff’s consent as a defense, if the act exceeded the

scope of that consent. An act that exceeds the scope of the consent given constitutes a battery.

(Barbara A., 145 Cal. App. 3d at 375; see Restat. 2d of Torts, § 892A(3), (4).)

Currently, there is no California case on point that discusses a plaintiff’s consent when

acting under a mistake concerning the nature of the act being consented to or the extent of the

harm to be expected from it and if the defendant was aware of the plaintiff's mistake. (See

Restat. 2d of Torts, § 892B(2).)

When Plaintiff entered Defendant Wrigley’s home, Plaintiff believed he was entering the

home of his friend, David Cunningham. (UMF 1.) Upon entering Defendant Wrigley’s home

Plaintiff did not expect to be shot, nor did he consent to being shot. While there is no clear

precedent on this particular issue, evidence does show that Plaintiff did not consent to Defendant

Wrigley shooting at him three times with a gun, and Plaintiff certainly did not consent to the

bullet wounds he sustained.

Plaintiff only said “Hello” upon entering Defendant Wrigley’s home. (UMF 4.) Plaintiff

did not have any other communications with Defendant Wrigley prior to Defendant Wrigley

pulling the trigger. Since there is no case law on point of whether the act of mistakenly entering


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another’s home is consent in and of itself to use deadly force, this case will set precedent in

establishing the law that mistakes are not considered implied consent.

Typically, consent or lack of consent has been applied to doctor-patient and sexual

assault cases. Plaintiff falls in neither of these categories as he mistakenly entered Defendant

Wrigley’s home and did not consent to any violence used against him. As such, there is no

triable issue of consent since Plaintiff has properly demonstrated a lack of consent in both the use

of a firearm against him and the gunshot wounds sustained.

C. DEFENDANT WRIGLEY’S INTENTIONAL ACT OF FIRING HIS GUN AT PLAINTIFF THREE TIMES DIRECTLY CAUSED PLAINTIFF TO SUFFER A HARMFUL CONTACT.

The element of harmful or offensive bodily contact must result from impermissible

conduct for a claim of battery. A contact is a touching that can be direct or indirect. A direct

contact occurs when the plaintiff's actual body is touched; whereas an indirect contact involves

anything that would be in contact or connected with the other person. (Restat. 2d of Torts, § 18.)

The contact may be either harmful or offensive. Bodily harm is defined as “any physical

impairment of the condition of another’s body, or physical pain or illness.” (Restat. 2d of Torts,

§ 15.) Offensive contact is bodily contact that would offend a reasonable person. (Restat. 2d of

Torts, § 19.) Furthermore, it is not necessary that the plaintiff be aware of the contact at the time

that it occurs. (Id.)

In the cases referenced above under intent, each of the defendant’s acts made harmful

contact with the plaintiff’s person. In Weisbart, supra, the Court of Appeal reversed the battery

claim in favor of the plaintiff where the defendant aimed a bow and arrow in plaintiff’s general

direction and shot his arrow directly hitting plaintiff in the eye. (260 Cal. App. 2d at 284.)


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In this case, Defendant Wrigley fired his gun three times in Plaintiff’s direction, and two

of the three bullets struck Plaintiff in the right leg. (UMF 13.) One bullet made harmful contact

with Plaintiff’s body by entering on the front side of his right leg. (UMF 8.) The other bullet

made harmful contact with Plaintiff’s body by entering on the backside of his right leg. (UMF 9.)

In Singer, supra, the harmful contact element was met when defendant threw a rock at

the plaintiff, striking and injuring the plaintiff in the eye. (144 Cal. App. 2d 637.) The harmful

contact here was made when the rock struck plaintiff in the eye. As dictated by precedent, this

Court should find that harmful contact was made when Defendant Wrigley used his gun to shoot

at Plaintiff, and two of the bullets struck Plaintiff in his right leg. (UMF 4-5.)

Defendant Wrigley made harmful contact with Plaintiff when two bullets from Defendant

Wrigley’s gun penetrated Plaintiff's leg at two different points, causing serious wounds to

Plaintiff’s person. Since Defendant Wrigley’s gunshots caused the harmful contact with

Plaintiff’s person, the element of harmful contact is satisfied and there is no triable issue as to

whether Defendant Wrigley caused such harmful contact to Plaintiff.

D. DEFENDANT WRIGLEY’S USE OF A GUN TO SHOOT AT PLAINTIFF WAS THE DIRECT AND PROXIMATE CAUSE OF PLAINTIFF’S TWO BULLET WOUNDS.

In order for a defendant to be subject to liability for battery, it is necessary that the

conduct be intentional and produces a harmful or offensive contact on the plaintiff, and that the

defendant’s conduct is a direct and proximate cause of the plaintiff's injuries. Proximate cause

has been defined as a cause that directly produces an injury and without which the injury would

not have occurred. (Black’s Law Dictionary (8th ed. 2004).) Essentially, it is a natural and

continuous sequence, unbroken by any intervening causes.


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In this case, Defendant Wrigley discharged his gun, a deadly weapon, at Plaintiff three

times and struck the Plaintiff in the leg with two of those bullets. Plaintiff’s gunshot wounds

were the direct and natural consequence of Defendant Wrigley’s actions. (UMF 13.) In

addition, Defendant Wrigley acknowledged that in discharging his gun, it was likely that harmful

contact would be made with Plaintiff’s person. (UMF 7.)

Since Plaintiff’s injuries were the direct, natural, and probable consequence of Defendant

Wrigley employing a deadly weapon three times at Plaintiff, there is no triable issues as to

whether the proximate cause element is met.

E. DEFENDANT WRIGLEY DID NOT ACT IN SELF-DEFENSE WHEN HE USED UNREASONABLE AND UNECESSARY DEADLY FORCE AND SHOT AT PLAINTIFF THREE TIMES.

The privilege of self-defense in California is governed by California Civil Code, Section

50, which states that “[a]ny necessary force may be used to protect from wrongful injury the

person or property of oneself, or of a wife, husband, child, parent, or other relative, or […].”

Acts that would normally amount to assault or battery may therefore be excused under the

privilege to protect one’s self and certain others. (See Villines v. Tomerlin (1962) 206 Cal. App.

2d 448.)

The person claiming the privilege must reasonably believe that danger exists, and must

use only such force as is reasonably necessary. (Emphasis added; Fraguglia v. Sala (1936) 17

Cal. App. 2d 738, 745; Rest. 2d, Torts § 63.) The burden of proof is on the defendant to

demonstrate that he reasonably believed danger existed, and he used reasonably necessary force.

(See Marriott v. Williams (1908) 152 Cal. 705, 711.)

Here, Plaintiff did not act in a threatening manner that would have caused Defendant

Wrigley to believe that Plaintiff posed a danger to himself or his family. Defendant Wrigley

observed Plaintiff walking towards his home, and was unable to see any weapon on Plaintiff’s

person. (UMF 15, 17.)


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Further, as Plaintiff entered Defendant Wrigley’s home, Defendant Wrigley still was

unable to see any weapons on Plaintiff’s person. (UMF 16, 17.) Plaintiff immediately notified

the residents of the home of his presence by calling out “Hello.” (UMF 4, 18.) A reasonable

person in a similar situation would not take “Hello” as a threat to one’s self or his family. Thus,

Defendant Wrigley’s belief that danger existed was unreasonable.

Additionally, Defendant Wrigley reacted in an unreasonable manner and with

unnecessary force, when he shot at Plaintiff, who had merely stepped into the doorway and

called out “Hello.” (UMF 18.) Defendant Wrigley’s disproportional and excessive use of force

goes well beyond how a reasonable person would have acted in a similar situation. As evidence

shows, Plaintiff was not bearing any weapons, and Defendant Wrigley was unable to see whether

Plaintiff was bearing any weapons. (UMF 15-18.) Therefore, Defendant Wrigley was

unreasonable in his belief that Plaintiff posed a danger and unlawfully used deadly force beyond

that which is reasonably necessary under the circumstances.

The test of necessary force is the reasonable appearance, and not the actual necessity of

force. Hence, the notion that the right to use force in self-defense “is always limited by the

condition that the force used must be no more than is reasonably adequate and necessary to the

occasion” is improper. (Emphasis added; Vaughn v. Jonas (1948) 31 Cal. 2d 586, 599.)

Even considering said distinction, Plaintiff’s actions clearly did not cast a reasonable

appearance of threat towards Defendant Wrigley or his family. Plaintiff was shot at three times

after he merely stepped into the doorway of Defendant Wrigley’s home and called out “Hello.”

(UMF 3-7, 18.) Plaintiff did not act in any threatening manner, and did not say anything that

could have been perceived as threatening by Defendant Wrigley.

Finally, a defendant needs to show a specific overt act of hostility or threat of violence on

the part of an aggressor plaintiff that would tend to justify the actions of the defendant as defense

of self or property. (Villines, 206 Cal. App. 2d at 456.)

Presently, there are no facts in evidence that would allow Defendant Wrigley a claim that

Plaintiff engaged in an overt act of hostility or threatened him with violence. Plaintiff did not


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have the opportunity to say another word before Defendant Wrigley shot him. (UMF 18.) As

such, Defendant Wrigley was not justified or excused under the doctrine of privilege of self-

defense to use deadly force against Plaintiff by shooting at him three times and striking him

twice in the leg. Accordingly, the Court should sustain Plaintiff’s Motion for Summary

Adjudication as to the Second Cause of Action for Battery.

V.

CONCLUSION

Accordingly, for the reasons set forth above, Plaintiff respectfully requests that the

Motion for Summary Adjudication on the cause of action for battery be granted.

//

//


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Dated this 26th day of October, 2009. Respectfully submitted,

XXX LAW GROUP, LLP

By /s/

Attorneys for Plaintiff


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PROOF OF SERVICE[CCP 1013A(3), 2015.5]

STATE OF CALIFORNIA, COUNTY OF LOS ANGELESI am employed in Los Angeles County. My business address is

_________________________, where this mailing occurred. I am over the age of 18 and not a party to this action. I am readily familiar with the practices of ___________________, for collection and processing of correspondence for mailing with the United States Postal Service and e-mail. Such correspondence is deposited with the U.S. Postal Service with postage fully prepaid the same day in the ordinary course of business, or sent via e-mail the same day in the ordinary course of business.

On October 26, 2009, I served the foregoing documents, bearing the title: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION, on the interested parties in this action, as follows:

Name Address

[ ] (BY MAIL) I placed such envelope(s) in the U.S. mail for collection and mailing on this date following ordinary business practice.

[ ] (BY FEDERAL EXPRESS – NEXT DAY DELIVERY) I caused to be delivered such envelope(s) by hand to the office of addressee(s).

[ ] (BY FACSIMILE) I caused to be served, via facsimile, the above-entitled documents to the office of the addressee(s).

[X] (BY PERSONAL DELIVERY) I caused to be delivered such envelope(s) by hand to the office of the addressee(s).

[X] (STATE) I declare under penalty of perjury that the above is true and correct.

[ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.

Executed on October 26, 2009, at Los Angeles, California.

Name


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summary adjudication motion(2)[1]

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