Angelito Claudio et al v. American Koyu Corporation et al

TENTATIVE RULINGS

FOR: May 11, 2026

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CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.

Angelito Claudio et al v. American Koyu Corporation et al 24CV001402

[1] DEFENDANTS AMERICAN KOYU CORPORATION AND EAGLE VINES VINEYARDS AND GOLF CLUB, L.L.C.’S MOTION TO STRIKE SECOND AMENDED COMPLAINT

TENTATIVE RULING: The motion is DENIED.

Defendants American Koyu Corporation and Eagle Vines Vineyards and Golf Club, L.L.C. move, pursuant to California Code of Civil Procedure sections 435 and 436, for an order striking allegations relating to, and the prayer for punitive damages set forth in the Second Amended Complaint (SAC) filed in this action by Plaintiffs Angelito Claudio and Nicholas Rapacon, on grounds that the SAC fails to allege facts sufficient to support a prayer for punitive damages.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. §436.) Among these, the Court may strike any language in a cause of action that seeks an improper remedy. (Caliber Bodyworks, Inc. v. Super. Court (2005) 134 Cal.App.4th 365, 385.)

To adequately state a claim for punitive damages, a complaint must contain allegations that the defendant has been guilty of oppression, fraud or malice. (Civil Code § 3294, subd. (a); Turman v. Turning Point of Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code § 3294, subd. (c)(1).) Allegations of malice must be pled with exactitude. (G.D.

Searle & Co. v. Super. Court (1975) 49 Cal.App.3d 22, 27. “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Id. at 29.) Mere conclusory allegations parroting the language of the statute will not suffice to support a prayer for punitive damages. (Smith v. Super. Court (1992) 10 Cal.App.4th 1033, 1042.)

However, in ruling on a motion to strike, the Court is to “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Turman v. Turning Point of Central Cal., Inc., supra, 191 Cal.App.4th at 63.) “Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.” (Perkins v. Super. Court (1981) 117 Cal.App.3d 1, 6-7.) An order striking a claim for punitive damages is improper where the complaint provides notice to the defendants of a plaintiff’s “precise claims against them.” (Id. at 7.)

The Court finds that the SAC contains allegations sufficient to put Defendants on notice regarding the precise claim against them, and that these allegations, when presumed true, are sufficient to make a prima facie case for an award of punitive damages. (See SAC at pp. 7-11.) The Court further finds that the statutory language set forth in the SAC is supplemented by sufficient evidentiary facts to support the prayer under the heightened pleading standard.

Defendants argue that Plaintiffs are required to specifically allege evidentiary facts relating to ratification. In support of the argument, they cite Greenfield v. Spectrum Investment Corp. (1985) 174 Cal.App.3d 111, 119 (Greenfield). (See, e.g., Support Memorandum at 3:19- 23.) Greenfield, however, did not involve the pleading standard of a prayer for punitive damages. Rather, Greenfield addressed claims that, at trial, Plaintiff presented “insufficient evidence to support the giving of instructions as to punitive damages and awarding them . . ..”1 (Id. at 117.) Moreover, the Court finds that the allegations of pages 9 through 11 of the SAC are sufficient to plead ratification by the entity Defendants.

1 The Court notes that Greenfield has also been overruled, albeit on other grounds, by Latkin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 663. Defendants fail to bring this fact to the Court’s attention through their moving papers. Defendants are urged to take more care to advise the Court regarding the status of cited caselaw going forward.

Based on the foregoing, the Motion to Strike is DENIED.

[2] DEFENDANTS AMERICAN KOYU CORPORATION AND EAGLE VINES VINEYARDS AND GOLF CLUB L.L.C.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION (for oral argument as to punitive damages only)

TENTATIVE RULING: The motion is DENIED.

A. PRELIMINARY MATTERS

1. Nature of the Motion

Defendants American Koyu Corporation and Eagle Vines Vineyards and Golf Club L.L.C. move, pursuant to California Code of Civil Procedure section 437c, for an order granting summary judgment in favor of Defendants and against Plaintiffs Angelito Claudio and Nicholas Rapacon as to Plaintiffs entire operative complaint, or in the alternative, summary adjudication as to both of the two causes of action, and as to the prayer for punitive damages asserted therein. Specifically, Defendants assert that there is no triable question of material fact

2.

Procedural Background

On November 5, 2024, Plaintiffs filed their First Amended Complaint in the action asserting claims for general negligence and premises liability against Defendants. Defendants filed the instant motion on January 2, 2026. On February 18, 2026, the Court issued an Order After Hearing Granting Plaintiffs’ Motion for Leave to File a Second Amended Complaint. That order provided that “[b]ased on the agreement of the parties, the operative complaint on the day Defendants’ motion for summary judgment/adjudication is heard shall be the complaint subject to summary judgment/adjudication.

Although unlikely, to the extent Plaintiffs’ opposition to the motion for summary judgment/adjudication raises new issues as result of the instant Motion, Defendants may address them in Reply.” On February 23, 2026, Plaintiffs filed the operative Second Amended Complaint (SAC). Through that pleading, plaintiffs reassert the same causes of action, but include a prayer for exemplary damages based on novel allegations.

The gravamen of the SAC is that Plaintiffs were injured when a golf cart, owned by Defendants, that Plaintiffs were driving and riding in, respectively, on a golf course owned and/or operated by Defendants, “descended off a narrow, unstable, and unreinforced cart path, descending nearly 20-feet down cliff and into creek bed, hidden by plant overgrowth . . ..” (Id. at Attachment A.)

The motion came on originally for hearing on March 26, 2026. At the request of counsel, it was continued to April 2, 2026. On April 1, 2026, the Court posted a Tentative Ruling on the Motion, which omitted any discussion, analysis, or ruling, on Defendants’ request for summary adjudication relating to the prayer for punitive damages asserted through the SAC. Nevertheless,

the parties appeared at the April 2, 2026, hearing and argued the remaining issues to the Court. The Court then ordered the matter continued to this date for argument limited to the request for summary adjudication as to the prayer for punitive damages, and granted the parties leave to file additional briefs relating to that issue. (See Minute Order of April 2, 2026.)

While argument at the May 11, 2026, hearing is, pursuant to the Court’s order, limited to the issue of punitive damages, the Court, here, addresses all issues raised by the instant motion.

3. Evidentiary Objections

a. Plaintiffs’ Evidentiary Objections

The Court rules on Plaintiff’s evidentiary objections as follows.

Objection No. 1, 3: SUSTAINED – There is no evidence in the record tending to show that Mr. Griffis had personal knowledge of the subject matter. While the cover page of the deposition transcript indicates that he was produced as Defendants’ person most knowledgeable, there does not appear, in the Court’s file, any record of testimony (or other evidence) indicating what Mr. Griffis’ role with / relationship to Defendants was, what aspects of the events he witnessed, or what type of information (e.g., sensory, hearsay, etc.) he based his testimony on.2

Objection No. 2: SUSTAINED - Hearsay.

b. Moving Defendants’ Evidentiary Objections

The Court declines to rule on Defendants’ evidentiary objections on grounds that none of the subject evidence is material to the Court’s resolution of the issues presented on the motion. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”]

B. LEGAL BACKGROUND

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit....” (Code Civ. Proc., § 437c, subd. (a)(1).) “A party may move for summary adjudication as to one or more causes of action within an action...if the party contends that the cause of action has no merit....A motion for summary adjudication shall be granted only if it completely disposes of a cause of action....” (Code Civ. Proc., § 437c, subd. (f)(1).)

The party moving for summary adjudication bears the burden of persuasion that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “‘Material facts’ are facts that relate to the cause of action...that is the subject of the

2 On two occasions appearing in the provided transcript, Mr. Chrisp states “since you’ve been general manager at Eagle Vines.” (See Index of Evidence (IOE) at Exh. D, at 20:6 and 20:15.) This reference by counsel does not, however, constitute evidence.

motion and that could make a difference in the disposition of the motion.” (Rules of Court, rule 3.1350, subd. (a)(2).) The moving party also bears an initial burden of production.

“The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is different than the burden to show that one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case . . . ‘the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense’ . . . . If the defendant does not meet this burden, the motion must be denied. [Citation.]” (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 467-68.)

C. ANALYSIS

1. Defendants Fail to Make a Prima Facie Showing that the Purported Release Bars Mr. Claudio’s Negligence Claim

Defendants first assert that “[i]n order to rent and use the cart, Plaintiff Claudio executed [a] Release wherein he expressly assumed the risk of injury and/or damages to himself or others arising out of his use (i.e., driving) of the subject golf car, which completely bars Plaintiff Claudio’s Complaint.” (Support Memorandum at 14:5-8.)

As Plaintiffs note, however, an agreement purporting to waive liability for future gross negligence is unenforceable against a participant in a sporting activity. (City of Santa Barbara v. Super. Ct. (2007) 41 Cal.4th 747, 777.)

The pleadings contour the scope of issues on a motion for summary judgment. (See Orange County Air Pollution Control Dist. V. Super. Ct. (1972) 27 Cal.App.3d 109, 112.) The SAC explicitly alleges that “Defendants . . . with gross negligence, recklessly, and/or with conscious disregard for the risk of serious bodily injury or death owned, maintained, failed to warn, failed to inspect, and/or operated the premises located at 580 Kelly Rd, American Canyon, CA 94503 and the subject golf cart involved in the incident.”3 (SAC at p. 6.)

Because Plaintiffs have alleged gross negligence as part of their first cause of action, Defendants have not made a prima facie showing that the purported waiver by Mr. Claudio [the “Release”] serves as a bar to that claim.

2. Assumption of Risk

Defendants next contend that each of Plaintiffs’ claims is barred pursuant to the assumption of risk doctrine.

“‘As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. [Citation.] Thus, for example, a 3 This allegation appears verbatim in the First Amended Complaint as well.

property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. [Citation.] In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.’ [Citation.] ‘In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.’ [Citation.] ‘Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ [Citation.]” (American Golf Corp. v.

Super. Ct. (2000) 79 Cal.App.4th 30, 35-36. (American Golf).) Thus, “[u]nder the assumption of the risk doctrine, ordinarily a recreation provider owes no duty to a participant in an active sport to use due care to eliminate risks inherent in the sport.” (Id. at 36. Emphasis added.) “However, a recreation provider owes a participant in an active sport a duty, under the secondary assumption of the risk doctrine, not to increase the risk of harm over and above the inherent risk of the sport.” (American Golf, supra, 79 Cal.App.4th at 36-37.)

“[T]he question whether the defendant owes a duty to the plaintiff is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury. . . [A] trial court is to determine the question of duty as a function of the scope and definition of a given active sport’s inherent risks. In many active sports cases, this principal determination of the question of duty leads to a second duty analysis.

Although a defendant generally owes no duty to protect against the risks inherent in a sport, the defendant generally owes a duty not to increase the risks of the activity beyond the risks inherent in the sport. This second determination of duty, however, still hinges upon the trial court’s determination of the question of duty in the first instance, by defining the risks inherent in the sport at issue. It is for the court to decide whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.” (American Golf, supra, 79 Cal.App.4th at 37.)

“When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff’s primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395 [36 Cal.Rptr.2d 418].)

“Golf is an active sport to which the assumption of the risk doctrine applies.” (American Golf, supra, 79 Cal.App.4th at 37.) Moreover, “one who plays golf on an outdoor course assumes those risks associated with the topographical features of the course.” (Wellsfry v. Ocean Colony Partners, LLC (2023) 90 Cal.App.5th 1075, 1086.) However, “[t]he duty of a golf course towards a golfer is to provide a reasonably safe golf course. This duty requires the golf course owner ‘to minimize the risks without altering the nature of the sport. [Citations.]’ [Citation.]” (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134.)

Plaintiffs do not allege that they were injured as a result of events that occur ordinarily in the course of a game of golf. Rather, they allege that they were injured as a result of: (1) Defendants’ failure to maintain a golf cart in proper working order; and/or (2) Defendants’

maintenance of a narrow, unstable, and unreinforced cart path in close proximity to a nearly 20- foot ravine hidden by plant overgrowth. It is not clear either from the evidence presented or from the allegations of the SAC that the location of the incident was a “topographical feature of the course.” Put another way, there remains a question whether it was, instead, a topographical feature abutting the course of play, such that alteration of that topographical feature would not alter the course of play on the course.4 Defendants fail, therefore, to show that Plaintiffs’ claim is barred under the assumption of risk doctrine.

Defendants also assert that “[t]he golf cart rented to Plaintiff Claudio was properly maintained and according to the prior user earlier that day, had no issues, conditions or malfunctions (UMF Nos. 14-17, 21.) First, Plaintiffs’ objections to the bulk of the subject evidence are each sustained, above. Second, even assuming, arguendo, that Defendants could lay a proper foundation for the evidence, it would only tend to show that maintenance efforts were undertaken on the subject golf cart. The evidence would not be sufficient to make a prima facie showing negating Plaintiffs’ claim that Defendants’ maintenance of the golf cart breached a duty of care.

Third, the Court finds that Plaintiffs have produced evidence sufficient to create a triable question as to such breach. (See, e.g., Claudio Decl. at ¶¶ 3, 15.) Finally, because Plaintiffs also allege a duty to maintain the area of the cart path and the adjacent ravine in a safe condition, Defendants would not be entitled to summary adjudication or judgment based only on a showing that they did not breach any duty relating to maintenance of the golf cart.

Based on the foregoing, the Court does not find that Defendants have shown that they owed no legal duty to Plaintiffs to prevent the harm alleged. (See Freeman v. Hale, supra, 30 Cal.App.4th at 1395.)

For this reason, Defendants fail to persuade the Court that they are entitled to summary adjudication as to either of Plaintiffs’ causes of action based on the assumption of risk doctrine.

3. Defendants are Not Entitled to Summary Judgment

Because Defendants fail to show that Plaintiffs’ action, as a whole, is without merit they are not entitled to summary judgment. (See Code Civ. Proc., § 437c, subd. (a)(1).)

4. Premises Liability

Defendants next contend that they are entitled to summary adjudication as to Plaintiffs’ claim for premises liability on grounds that Plaintiffs cannot create a triable question of fact as to the element of duty.

The elements of a cause of action for negligence are the same as those for a cause of action for premises liability. (See Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) Under either claim a plaintiff must prove a legal duty, breach of such duty, and injury proximately or legally caused by that breach. (See ibid.) As relates to a claim for premises liability, “California

4 The Court notes that the authority cited by Defendants on this point, Hawn v. Town of W. Haverstraw (2014) 563 Fed. Appx. 75, is unpublished. Defendants not only rely on the opinion’s holding, they fail to alert the Court as to its unpublished status. Defendants are urged to be more careful in their citations to the Court going forward.

law requires landowners to maintain land in their possession and control in a reasonably safe condition. [Citations.] Consequently, landowners are liable for injuries caused by a lack of due care in the maintenance of their property.” (Jones v. Awad, supra, 39 Cal.App.5th at 1208.)

“‘It is the general rule that the proprietor of a [business] who knows of, or by the exercise of reasonable care could discover, an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm.’ [Citations.]” (Chance v.

Lawry’s, Inc. (1962) 58 Cal.2d 368, 373 (Chance).) “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 (Krongos).) However, “[i]t is also the law that a business invitee is not obliged to make a critical examination of the surroundings he is about to enter, but on the contrary has the right to assume that those in charge have exercised due care in the matter of inspection, and have taken proper precautions for the safety of the patrons, and will use reasonable care in guarding him against injury.” (Chance v.

Lawry’s, Inc. (1962) 58 Cal.2d 368, 373-374.)

First, Defendants argue that they had no duty to warn of, or to correct, a dangerous condition because the subject ravine was an open and obvious condition of the premises.

The Court finds that Defendants fail to make a prima facie showing that the ravine was “so obvious” that an invitee driving to or from hole number 12 in a golf cart “could reasonably be expected to see it” such that Defendants are “under no further duty to remedy or warn of the condition.” (Krongos, supra, 7 Cal.App.4th at 393.) Defendants’ evidence on this point consists entirely of deposition testimony by Defendant’s PMK David Griffis. (See IOE at Exh. D (Griffis Transcript).) Mr. Griffis testifies, in effect, that, in his opinion, the ravine is apparent to anyone operating a golf cart on that portion of the premises. (See Sep.

St. at UMF Nos. 5, Griffis Transcript at 110:12-113:3.) As noted above, however, Defendants fail to provide the Court with that portion of the Griffis deposition transcript indicating what Mr. Griffis’ relationship to Defendants is, and what constitutes the basis of his knowledge / opinion of the subject matters of the deposition. Even assuming, arguendo, that Mr. Griffis’ opinions are supported by his firsthand knowledge, the Court does not find this single opinion sufficient to carry Defendants’ burden, here, of making a prima facie showing that the condition was obvious such that Defendants’ owed Plaintiff no duty in relation thereto.

The Court further finds that, even if Defendants had carried their initial burden, Plaintiff produced evidence sufficient to create a triable question relating thereto. (See, e.g., Claudio Decl. at ¶¶ 8-10.)

Defendants next argue that “there is no evidence that Defendants had actual or constructive notice of this dangerous condition.” (Support Memorandum at 21:11-12.) Defendants point to UMFs that they contend establish that “from 2015 to present and after 1.5 million rounds of golf at Eagle Vines Golf Course, Defendants did not receive any complaints

from anyone concerning the subject ravine near hole #12 . . . [n]or did Defendants receive any reports of injury arising from the design or maintenance of the cart path near hole #12 or the subject ravine.” (Support Memorandum at 22:11-14.) Again, however, the only evidence in support of these UMFs is the Griffis Transcript, and there appears to be no evidence before the Court regarding Griffis’ position with Defendants. As such, his personal lack of information about, or knowledge of, such complaints is insufficient to make a prima facie showing that Defendants received no such complaints.

Moreover, this evidence only goes to actual knowledge of the dangerous condition. A business owner, however, is also charged with constructive knowledge of such conditions. (See Chance, supra, 58 Cal.2d at 373 [“‘It is the general rule that the proprietor of a [business] who . . . by the exercise of reasonable care could discover, an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm’ [Citations]”].)

Defendants present no UMFs or evidence sufficient to make a prima facie showing either that: (1) they had no such constructive knowledge; or (2) Plaintiffs are without evidence sufficient to create a triable question regarding such constructive knowledge.

Based on the foregoing, the Court does not find that Defendants have made a prima facie showing that Plaintiffs are unable to create a triable question of fact as to an element of their claim for premises liability. The motion for summary adjudication, as to that claim, is therefore DENIED.

5. General Negligence

Defendants next assert that “the undisputed facts make it clear that Plaintiffs’ alleged injuries are a result of Plaintiff Claudio’s failure to exercise reasonable and ordinary care in using and operating the golf cart.” (Support Memorandum at 24:7-8.) Prior to our Supreme Court’s opinion in Li v. Yellow Cab (1975) 13 Cal.3d 804, pursuant to the doctrine of contributory negligence, a plaintiff was barred from any recovery when his own negligent conduct contributed as a legal cause in any degree to the harm suffered by him. (See id. at 808.)

By that opinion, however, the Court held that “[t]he doctrine of comparative negligence is preferable to the ‘all-or-nothing’ doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice . . . [and] the doctrine of comparative negligence should be applied in this state in its so-called ‘pure’ form under which the assessment of liability in proportion to fault proceeds in spite of the fact that the plaintiff is equally at fault as or more at fault than the defendant . . ..” (Ibid.)

Thus, Defendants would not be entitled to summary adjudication simply upon a showing, here, that Plaintiff failed to exercise reasonable care under the circumstances.

6. Punitive Damages

A claim for punitive damages is a proper subject of a motion for summary adjudication, so long as the motion, if successful, disposes of the entire claim. (See Code Civ. Proc., § 437c, subd. (f), Catalano v. Super. Ct. (2000) 82 Cal.App.4th 91, 97.)

However, Defendants fail to carry either their initial burden of persuasion or their burden of proof. “Summary [adjudication] in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff’s cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial [of that cause of action].” (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557– 558 (Biscotti).) “The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, et al., Cal.

Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2021) § 10:241, p. 10-105; see also Guz v. Bechtel (2000) 24 Cal.4th 317, 334.) However, a defendant may also obtain summary judgment by affirmatively showing that plaintiff does not possess and cannot reasonably obtain evidence sufficient to establish an essential element – by, for example, admissions obtained through discovery that plaintiff is aware of no such evidence. (See Aguilar, supra, 25 Cal.4th at 855.)

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) Plaintiffs allege, through the SAC, that Defendants have been guilty of malice. (See SAC at 9:15-17.) “Malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code § 3294, subd. (c)(1).)

Defendants fail to cite to any evidence that would conclusively negate the element of malice. Defendants fail to cite to any evidence tending to show that Plaintiffs do not possess and cannot reasonably obtain evidence sufficient to show malice. As such, Defendants fail to carry their initial burden in moving for summary adjudication as to Plaintiffs’ prayer for punitive damages.

Defendants argue, through the Reply, that Plaintiffs do not carry their burden and that there is a lack of evidence in support of Plaintiffs’ prayer for punitive damages. (See, e.g., id. at 16:21-22, 17:20-21, and 17:27-28.)

“[T]here is no obligation on the opposing party (plaintiffs here) to establish anything by affidavit unless and until the moving party (defendant here) has by affidavit stated ‘“facts establishing every element necessary to sustain a judgment in his favor.”’ [Citation.] That means a defendant must show clearly that plaintiff’s ‘action has no merit.’ Summary judgments cannot be granted ‘by default’ [citation].” (Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 50.)

Based on the foregoing, Defendants have not made a showing sufficient to support an order granting them summary adjudication as to Plaintiffs’ prayer for punitive damages.

D. CONCLUSION

Based on the foregoing, Defendants’ motion is DENIED.

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