first and second causes of action. Specifically, Plaintiffs ask the
Court to find (1) that Defendant Marvin Vernis Smith is liable for
Minnie Smith’s wrongful death, and (2) that Plaintiffs are entitled to
punitive damages such that trial. If the Court makes these findings,
then trial will concern the amount of damages only.
CONFIDENTIAL MEMORANDUM
FOR JUDICIAL USE ONLY
Monica L. Scheetz
work 657.622.7071 · mscheetz@occourts.org · cell 213.819.5853
Name:
Date:
Cal. No.:
Thomas v. Smith
11/09/11
7
Motion 1:
Motion 2:
Motion 3:
Motion for Separate Trial
Motion for Abatement of Pending Motions
Motion for Judgment on the Pleadings
REQUEST FOR JUDICIAL NOTICE
Dept.:
Case No.:
19
2007-100028
Plaintiff asks the Court to take judicial notice of the following:
(1) the entire docket report in People v. Smith, Case No. 07CV1791,
(2) a minute order dated March 21, 2008, concerning sentencing in
the above-named case; and (3) all documents relating to the verdict
rendered by the jury in the above-named case. Pursuant to Cal.
Evid. Code §§ 452 and 453, the request should be granted as to the
first two matters. The Court should deny the request as to the third
matter, as the terminology “all documents relating to the verdict
rendered by the jury” is vague and ambiguous, and Plaintiffs do not
specify that they have submitted “all” documents relating to the
verdict rendered by the jury with their request for judicial notice.
However, Plaintiffs have submitted certain court records, which
comprise Exhibit D to the concurrently filed declaration of Casey
Johnson, and the Court can take judicial notice of those records.
Movants:
Defendant Brenda C. Smith, an individual and attorney
in fact for Defendant Marvin Vernis Smith
Respondents: Plaintiff Bennie Thomas, individually and as coadministrator of the estate of Minnie L. Smith
Date:
Opp.:
Reply:
timely filed 10/17/11; service ok
timely filed
none
FACTS/OVERVIEW:
MP CONTENTIONS:
Minnie L. Smith died on 12/15/06, the victim of homicide.
Ms. Smith’s husband, Defendant Marvin Vernis Smith, was convicted
of her murder. Ms. Smith’s son, Plaintiff Bennie Thomas, brought this
suit individually and as the co-administrator of Minnie Smith’s estate.
The operative complaint alleges three causes of action: (1) wrongful
death, (2) exemplary damages pursuant to Cal. Civ. Code § 3294(d),
and (3) a constructive trust pursuant to Cal. Civ. Code §§ 2223 and
2224. .
In a jury trial, Defendant Marvin Smith was found guilty of
murdering Minnie L. Smith. He was sentenced to 25 years to life
for the crime. He admitted these facts in his verified answer to the
FAC. Pursuant to Evidence Code §§ 452.5 and 1300, his
conviction is admissible to show he did, in fact, murder Minnie
Smith. The fact that the murder conviction is on appeal is
irrelevant.1 See In re Peterson (2007) 156 Cal. App. 4th 676, 696.
RELIEF SOUGHT:
1
The moving papers in this case were filed in 2009, and the hearing on the
motion for summary adjudication was continued in order to give the Court of
Appeal time to render an opinion on the criminal conviction of Defendant Marvin
Vernis Smith. (See 11/24/10 Ex Parte Application and Stipulation to Continue
Pursuant to CCP § 437c, Plaintiffs seek summary adjudication of the
1
Under CCP §377.60, a homicide is considered a wrongful death. See
Gilmore v. Supt. Ct. (1991) 230 Cal. App. 3d 416, 420. Under Cal. Civ.
Code § 3294(d), which specifically cover homicide, Plaintiffs are
entitled to punitive damages.
RP CONTENTIONS:
The above evidence is sufficient to meet Plaintiffs’ burden on
summary adjudication of the first cause of action (wrongful death).
Defendants have failed to submit any opposition or any conflicting
evidence. Thus, Defendants have failed to meet their burden of
showing the existence of a triable issue of fact. Accordingly,
Plaintiffs are entitled to summary adjudication of the first cause of
action in their favor.
Defendants did not file an opposition.
C. Second Cause of Action (Punitive Damages)
ANALYSIS:
A. Legal Standard
A “party moving for summary judgment [or adjudication] bears an
initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact . . . .” Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 26, 850. “A prima facie
showing is one that is sufficient to support the position of the party in
question.” Id. at 851. A plaintiff moving for summary judgment or
adjudication satisfies its initial burden by proving each element of the
cause of action(s). CCP § 437c(p)(1). Once a plaintiff meets that
burden, the burden shifts to the defendant to show that a triable issue of
one or more material facts exists to the cause of action or a defense. Id.
B. First Cause of Action (Wrongful Death)
A murder conviction is prima facie evidence of a wrongful death. See
In re Peterson (2007) 156 Cal. App. 4th 676, 695-96; Gilmore v. Supt.
Ct. (1991) 230 Cal. App. 3d 416, 420; CCP § 377.60; Cal. Evid. Code
§ 1300. Certified court records are admissible to prove a criminal
conviction. See CCP § 452.5. Here, Plaintiffs have submitted court
records showing that Defendant Marvin Vernis Smith was convicted of
murdering Minnie Smith pursuant to Cal. Penal Code § 187(a). (See
Johnson Decl. Exs. C-D.)
Trial ¶ 3.) The appeal should be decided by now.
2
Under Cal. Civ. Code § 3294(d), a plaintiff may recover punitive
damages in a wrongful death action brought pursuant to CCP
§ 377.060 where the death was the result of homicide. Because
Plaintiffs have met their burden of proof with regard to proving
Minnie Smith’s death was the result of a wrongful act of homicide,
a fortiori, Plaintiffs are entitled to punitive damages pursuant to
Cal. Civ. Code § 3294(d).
RECOMMENDED RULING:
Plaintiffs’ motion for summary adjudication of the first and second
causes of action is granted.