1 XXX LAW GROUP

Name
2 Address
3
Phone

4 Attorneys for Plaintiff

5 SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
6

7
) Case No.: 2009-2-TT
WILLIAM STRANGE, an individual )
8
)
Plaintiff, )
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) MEMORANDUM OF POINTS AND
vs. ) AUTHORITIES IN SUPPORT OF
10
) PLAINTIFF’S MOTION FOR SUMMARY
JAMES WRIGLEY, an individual; and DOES ) ADJUDICATION
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)
1 through 20, inclusive, )
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)
Defendants. ) Judge Assigned:
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)
) Action Filed:
14 )
)
15 ) Trial Date:
)
16 )
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I.
18
INTRODUCTORY STATEMENT
19

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

21 with respect to the Second Cause of Action for Battery in Plaintiff’s Amended Complaint. The
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evidence is undisputed in favor of Plaintiff with respect to the battery cause of action.
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A person is liable to another for battery if: 1) he or she intentionally acts to cause harmful
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or offensive contact; 2) the other person did not consent to the contact; and 3) harmful or
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26 offensive contact directly or indirectly results which caused injury, damage, or loss.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 In this case, by Defendant Wrigley firing his gun three times at Plaintiff, the natural
1

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

3 the natural and probable consequences of his or her acts. Furthermore, Plaintiff did not consent
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to the harmful contact. Plaintiff honestly and in good faith believed he was entering the home of
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his friend, David Cunningham, and did not expect to be shot. The circumstances surrounding
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7
Plaintiff’s entry into Defendant Wrigley’s home demonstrate that consent was never given for

8 the harmful contact.

9 This Motion for Summary Adjudication will show that there are no triable issues of
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material fact concerning the battery cause of action. Every element of battery is satisfied.
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Accordingly, this Motion for Summary Adjudication should be granted for Plaintiff.
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13

14 II.
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PRINCIPLES REGARDING SUMMARY ADJUDICATION
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California Code of Civil Procedure Section 437c, subdivision (c) (2009) sets forth the
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standard for summary adjudication: “The motion for summary [adjudication] shall be granted if
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19 all the papers submitted show that there is no triable issue as to any material fact and that the

20 moving party is entitled to a judgment as a matter of law.” Also, “[i]n determining whether the
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papers show that there is no triable issue as to any material fact the court shall consider all of the
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evidence set forth in the papers…” (Code Civ. P. § 437c, subd. (c).)
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24
Furthermore, Section 437c, subd. (f)(1) of the Code, provides that a party may move for

25 summary adjudication “as to one or more causes of action within an action” and that “a motion
26 for summary adjudication shall be granted only if it completely disposes of a cause of action…”
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 A plaintiff moving for summary adjudication bears the initial burden “of showing that
1

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

3 action entitling the party to judgment on that cause of action.” (Union Bank v. Superior Court
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(1995) 31 Cal. App. 4th 573, 583.) Once this burden is met, the burden shifts to the defendant to
5
show that a triable issue of material fact exists to the defense, supported by evidence of specific
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7
facts. (Code Civ. P. § 437c, subd. (o)(1); Aguilar v. Atlantic Richfield Co. (2000) 25 Cal. 4th

8 826, 849-51.) In determining the existence of a triable issue of material fact, the moving party’s
9 evidence is strictly construed, while the responding party’s evidence is liberally construed.
10
(D’Amico v. Board of Medical Examiners (1974) 11 Cal. 2d 1, 21.)
11

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

15 walk up the front walkway of Defendant Wrigley’s home. Defendant Wrigley did not see any
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weapons on Plaintiff’s person at this time. (Undisputed Material Facts (“UMF”) 15.) Plaintiff
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was looking for his friend, David Cunningham’s house, in the Walden Gardens Subdivision in
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Nita City, the same subdivision where Defendant Wrigley’s house is located. Mr. Cunningham
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20 had promised to leave his front porch light on, and his front door unlocked for Plaintiff.

21 Defendant Wrigley also left his front porch light on and his front door unlocked on this night.
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Mr. Cunningham resided at 2416 Lilly Avenue, Nita City, in the Walden Gardens Subdivision
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and Defendant Wrigley resided at 2416 Lilac Avenue, Nita City, in the Walden Gardens
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25
Subdivision. Due to the similarity of street names and identical street numbers, people often

26 mistake the addresses of Defendant Wrigley and Mr. Cunningham. (UMF 2 (a) –(f).)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 As Plaintiff entered Defendant Wrigley’s home, Defendant Wrigley took his loaded gun
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2 from the drawer he kept it in, and removed it from the holster. (UMF 3.) Plaintiff was not in

3 possession of any weapons as he walked onto and entered Defendant Wrigley’s property. (UMF
4
17.) When Plaintiff was in the doorway of Defendant Wrigley’s home, Defendant Wrigley did
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not see any weapons on Plaintiff’s person. (UMF 16.)
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7
Upon entering Defendant Wrigley’s home Plaintiff called out “Hello.” Defendant

8 Wrigley aimed his gun at Plaintiff and fired the first shot at Plaintiff, which hit Plaintiff in the
9 front of his right leg. (UMF 4.) Defendant Wrigley then shot at Plaintiff two more times, and hit
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Plaintiff in the back of his right leg with his third shot. (UMF 5.) Defendant Wrigley’s second
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shot missed Plaintiff only because Plaintiff moved. (UMF 6.)
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13 At all times Plaintiff acted in a reasonable manner to make his presence known to the

14 occupants of the property, and Plaintiff’s actions did not pose a threat to the occupants of the
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property. (UMF 18.)
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17
IV.

18
ARGUMENT

19
Battery is the intentional, unlawful, and harmful or offensive contact with the person of
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another. (Piedra v. Dugan (2004) 123 Cal. App. 4th1483; Barbara A. v. John G. (1983) 145 Cal.
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22 App. 3d 369; Delia S. v. Torres (1982) 134 Cal. App. 3d 471 (overruled on other grounds in

23 Christensen v. Superior Court (1991) 54 Cal. 3d 868).) California Penal Code Section 240
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defines battery as “any willful and unlawful use of force or violence upon the person of another.”
25
This definition has been deemed applicable to tort cases. (Fraguglia v. Sala (1936) 17 Cal. App.
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27
2d 738, 742.) A person is liable to another for battery, therefore, if 1) he or she intentionally acts

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 to cause harmful or offensive contact with the person; 2) the person did not consent to the
1

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

3 caused injury, damage, or loss. (See Barough v. Haberman (1994) 26 Cal. App. 4th 40.)
4
A. DEFENDANT WRIGLEY ACTED WITH THE INTENT TO CAUSE A
5 HARMFUL CONTACT WITH PLAINTIFF WHEN DEFENDANT
WRIGLEY SHOT AT PLAINTIFF THREE TIMES.
6

7
The element of intent for a battery cause of action is satisfied where the defendant

8 intended to do the particular act which caused the harm. (Singer v. Marx (1956) 144 Cal. App.
9 2d 637.)
10
Courts have found intent to cause harmful or offensive contact with a person where
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defendant hit plaintiff on the side of the head (Brown v. Ransweiler (2009) 171 Cal. App. 4th
12

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

14 (1968) 260 Cal. App. 2d 281); and where defendant threw a rock at plaintiff (Singer, supra 144
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Cal. App. 2d 637). In the above-entitled cases whether the defendants intended to cause any
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injury to the plaintiff was not in issue. The issue of intent for battery is whether the defendant
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intended to do the act that caused the harmful contact with plaintiff.
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19 “The general rule is that every person is presumed to intend the natural and probable

20 consequences of his or her acts.” (Lopez v. Surchia (1952) 112 Cal. App. 2d 314, 318.) In
21
Lopez, supra, the court held that the defendant was liable for battery for gunshot wounds even
22
though he did not intend to injure the plaintiff by firing his gun. (112 Cal. App. 2d 314.)
23

24
In Brown v. Ransweiler, the court affirmed summary adjudication on a battery cause of

25 action where a police officer’s bullet struck a bystander in his attempt to apprehend a murder
26 suspect. (171 Cal. App. 4th 516.) The court pointed out that the officer’s use of force was not
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 unreasonable under the circumstances and that plaintiff had failed to raise any triable issue of
1

2 fact. (Id.)

3 The facts of this case differ significantly from those in Brown, supra. The defendant in
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Brown was a police officer, acting in the line of duty in pursuit of a known murder suspect.
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Defendant Wrigley, by contrast, was a civilian who used deadly force against Plaintiff, who was
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unarmed and posed no threat. (UMF 17-18.)

8 This case is more akin to Lopez, supra. (112 Cal. App. 2d 314.) Defendant Wrigley, in
9 firing his gun at Plaintiff three times, intended to cause a harmful contact with Plaintiff. Two of
10
those three gunshots struck Plaintiff in his right leg. (UMF 8-9.) Case law clearly establishes
11
that the element of intent for a battery cause of action is satisfied where the defendant intended to
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13 do the act that caused the harm. Defendant Wrigley intended to fire his gun at Plaintiff, as he

14 discharged his weapon three times. (UMF 4-6.) The first bullet struck Plaintiff in the front of
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his right leg. (UMF 8.) Despite Plaintiff attempting to retreat from Defendant Wrigley’s home,
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Defendant Wrigley shot at Plaintiff twice more. (UMF 5.) The third bullet that Defendant
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Wrigley fired, struck Plaintiff in the back of his right leg, incapacitating him. (UMF 9.) It was
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19 only at this point that Defendant Wrigley ceased fire. Defendant Wrigley’ s use of a gun,

20 moreover, is willful and unlawful force and violence upon Plaintiff as defined under Penal Code
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§ 240.
22
Under the established law in California, there is no triable issue as to Defendant
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24
Wrigley’s intent to fire his gun at Plaintiff.

25 B. PLAINTIFF DID NOT CONSENT TO BEING SHOT AT THREE TIMES

BY DEFENDANT WRIGLEY OR TO THE HARMFUL CONTACT THAT
26 RESULTED FROM THE GUNSHOTS.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 Plaintiff must plead facts sufficient to show an absence of informed consent to the
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2 particular harmful contact. (Rains v. Superior Court (1984) 150 Cal. App. 3d 933.) Consent has

3 been defined as “willingness in fact for conduct to occur. It may be manifested by action or
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inaction and need not be communicated to the actor.” (Restatement (Second) of Torts Section
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892(1), (2) (1965).) In essence, a plaintiff’s consent acts to negate the existence for a claim of
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7
battery, although it is not necessarily a privilege or defense. (Restat. 2d of Torts, §§ 49-62, 892-

8 892D.) A defendant may not rely on a plaintiff’s consent as a defense, if the act exceeded the
9 scope of that consent. An act that exceeds the scope of the consent given constitutes a battery.
10
(Barbara A., 145 Cal. App. 3d at 375; see Restat. 2d of Torts, § 892A(3), (4).)
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Currently, there is no California case on point that discusses a plaintiff’s consent when
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13 acting under a mistake concerning the nature of the act being consented to or the extent of the

14 harm to be expected from it and if the defendant was aware of the plaintiff's mistake. (See
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Restat. 2d of Torts, § 892B(2).)
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When Plaintiff entered Defendant Wrigley’s home, Plaintiff believed he was entering the
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home of his friend, David Cunningham. (UMF 1.) Upon entering Defendant Wrigley’s home
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19 Plaintiff did not expect to be shot, nor did he consent to being shot. While there is no clear

20 precedent on this particular issue, evidence does show that Plaintiff did not consent to Defendant
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Wrigley shooting at him three times with a gun, and Plaintiff certainly did not consent to the
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bullet wounds he sustained.
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Plaintiff only said “Hello” upon entering Defendant Wrigley’s home. (UMF 4.) Plaintiff

25 did not have any other communications with Defendant Wrigley prior to Defendant Wrigley
26 pulling the trigger. Since there is no case law on point of whether the act of mistakenly entering
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 another’s home is consent in and of itself to use deadly force, this case will set precedent in
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2 establishing the law that mistakes are not considered implied consent.

3 Typically, consent or lack of consent has been applied to doctor-patient and sexual
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assault cases. Plaintiff falls in neither of these categories as he mistakenly entered Defendant
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Wrigley’s home and did not consent to any violence used against him. As such, there is no
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7
triable issue of consent since Plaintiff has properly demonstrated a lack of consent in both the use

8 of a firearm against him and the gunshot wounds sustained.

9 C. DEFENDANT WRIGLEY’S INTENTIONAL ACT OF FIRING HIS GUN
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AT PLAINTIFF THREE TIMES DIRECTLY CAUSED PLAINTIFF TO
SUFFER A HARMFUL CONTACT.
11
The element of harmful or offensive bodily contact must result from impermissible
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13 conduct for a claim of battery. A contact is a touching that can be direct or indirect. A direct

14 contact occurs when the plaintiff's actual body is touched; whereas an indirect contact involves
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anything that would be in contact or connected with the other person. (Restat. 2d of Torts, § 18.)
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The contact may be either harmful or offensive. Bodily harm is defined as “any physical
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impairment of the condition of another’s body, or physical pain or illness.” (Restat. 2d of Torts,
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19 § 15.) Offensive contact is bodily contact that would offend a reasonable person. (Restat. 2d of

20 Torts, § 19.) Furthermore, it is not necessary that the plaintiff be aware of the contact at the time
21
that it occurs. (Id.)
22
In the cases referenced above under intent, each of the defendant’s acts made harmful
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24
contact with the plaintiff’s person. In Weisbart, supra, the Court of Appeal reversed the battery

25 claim in favor of the plaintiff where the defendant aimed a bow and arrow in plaintiff’s general
26 direction and shot his arrow directly hitting plaintiff in the eye. (260 Cal. App. 2d at 284.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 In this case, Defendant Wrigley fired his gun three times in Plaintiff’s direction, and two
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2 of the three bullets struck Plaintiff in the right leg. (UMF 13.) One bullet made harmful contact

3 with Plaintiff’s body by entering on the front side of his right leg. (UMF 8.) The other bullet
4
made harmful contact with Plaintiff’s body by entering on the backside of his right leg. (UMF 9.)
5
In Singer, supra, the harmful contact element was met when defendant threw a rock at
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7
the plaintiff, striking and injuring the plaintiff in the eye. (144 Cal. App. 2d 637.) The harmful

8 contact here was made when the rock struck plaintiff in the eye. As dictated by precedent, this
9 Court should find that harmful contact was made when Defendant Wrigley used his gun to shoot
10
at Plaintiff, and two of the bullets struck Plaintiff in his right leg. (UMF 4-5.)
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Defendant Wrigley made harmful contact with Plaintiff when two bullets from Defendant
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13 Wrigley’s gun penetrated Plaintiff's leg at two different points, causing serious wounds to

14 Plaintiff’s person. Since Defendant Wrigley’s gunshots caused the harmful contact with
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Plaintiff’s person, the element of harmful contact is satisfied and there is no triable issue as to
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whether Defendant Wrigley caused such harmful contact to Plaintiff.
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D. DEFENDANT WRIGLEY’S USE OF A GUN TO SHOOT AT PLAINTIFF
18
WAS THE DIRECT AND PROXIMATE CAUSE OF PLAINTIFF’S TWO
19 BULLET WOUNDS.

20 In order for a defendant to be subject to liability for battery, it is necessary that the
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conduct be intentional and produces a harmful or offensive contact on the plaintiff, and that the
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defendant’s conduct is a direct and proximate cause of the plaintiff's injuries. Proximate cause
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24
has been defined as a cause that directly produces an injury and without which the injury would

25 not have occurred. (Black’s Law Dictionary (8th ed. 2004).) Essentially, it is a natural and
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continuous sequence, unbroken by any intervening causes.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 In this case, Defendant Wrigley discharged his gun, a deadly weapon, at Plaintiff three
1

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

3 were the direct and natural consequence of Defendant Wrigley’s actions. (UMF 13.) In
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addition, Defendant Wrigley acknowledged that in discharging his gun, it was likely that harmful
5
contact would be made with Plaintiff’s person. (UMF 7.)
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7
Since Plaintiff’s injuries were the direct, natural, and probable consequence of Defendant

8 Wrigley employing a deadly weapon three times at Plaintiff, there is no triable issues as to
9 whether the proximate cause element is met.
10
E. DEFENDANT WRIGLEY DID NOT ACT IN SELF-DEFENSE WHEN HE
11 USED UNREASONABLE AND UNECESSARY DEADLY FORCE AND SHOT
AT PLAINTIFF THREE TIMES.
12
The privilege of self-defense in California is governed by California Civil Code, Section
13
50, which states that “[a]ny necessary force may be used to protect from wrongful injury the
14
person or property of oneself, or of a wife, husband, child, parent, or other relative, or […].”
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Acts that would normally amount to assault or battery may therefore be excused under the
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privilege to protect one’s self and certain others. (See Villines v. Tomerlin (1962) 206 Cal. App.
17
2d 448.)
18
The person claiming the privilege must reasonably believe that danger exists, and must
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use only such force as is reasonably necessary. (Emphasis added; Fraguglia v. Sala (1936) 17
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Cal. App. 2d 738, 745; Rest. 2d, Torts § 63.) The burden of proof is on the defendant to
21
demonstrate that he reasonably believed danger existed, and he used reasonably necessary force.
22
(See Marriott v. Williams (1908) 152 Cal. 705, 711.)
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Here, Plaintiff did not act in a threatening manner that would have caused Defendant
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Wrigley to believe that Plaintiff posed a danger to himself or his family. Defendant Wrigley
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observed Plaintiff walking towards his home, and was unable to see any weapon on Plaintiff’s
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person. (UMF 15, 17.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 1 Further, as Plaintiff entered Defendant Wrigley’s home, Defendant Wrigley still was
2 unable to see any weapons on Plaintiff’s person. (UMF 16, 17.) Plaintiff immediately notified
3 the residents of the home of his presence by calling out “Hello.” (UMF 4, 18.) A reasonable
4 person in a similar situation would not take “Hello” as a threat to one’s self or his family. Thus,
5 Defendant Wrigley’s belief that danger existed was unreasonable.
6 Additionally, Defendant Wrigley reacted in an unreasonable manner and with
7 unnecessary force, when he shot at Plaintiff, who had merely stepped into the doorway and
8 called out “Hello.” (UMF 18.) Defendant Wrigley’s disproportional and excessive use of force
9 goes well beyond how a reasonable person would have acted in a similar situation. As evidence
10 shows, Plaintiff was not bearing any weapons, and Defendant Wrigley was unable to see whether
11 Plaintiff was bearing any weapons. (UMF 15-18.) Therefore, Defendant Wrigley was
12 unreasonable in his belief that Plaintiff posed a danger and unlawfully used deadly force beyond
13 that which is reasonably necessary under the circumstances.
14 The test of necessary force is the reasonable appearance, and not the actual necessity of
15 force. Hence, the notion that the right to use force in self-defense “is always limited by the
16 condition that the force used must be no more than is reasonably adequate and necessary to the
17 occasion” is improper. (Emphasis added; Vaughn v. Jonas (1948) 31 Cal. 2d 586, 599.)
18 Even considering said distinction, Plaintiff’s actions clearly did not cast a reasonable
19 appearance of threat towards Defendant Wrigley or his family. Plaintiff was shot at three times
20 after he merely stepped into the doorway of Defendant Wrigley’s home and called out “Hello.”
21 (UMF 3-7, 18.) Plaintiff did not act in any threatening manner, and did not say anything that
22 could have been perceived as threatening by Defendant Wrigley.
23 Finally, a defendant needs to show a specific overt act of hostility or threat of violence on
24 the part of an aggressor plaintiff that would tend to justify the actions of the defendant as defense
25 of self or property. (Villines, 206 Cal. App. 2d at 456.)
26 Presently, there are no facts in evidence that would allow Defendant Wrigley a claim that
27 Plaintiff engaged in an overt act of hostility or threatened him with violence. Plaintiff did not
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 1 have the opportunity to say another word before Defendant Wrigley shot him. (UMF 18.) As
2 such, Defendant Wrigley was not justified or excused under the doctrine of privilege of self-
3 defense to use deadly force against Plaintiff by shooting at him three times and striking him
4 twice in the leg. Accordingly, the Court should sustain Plaintiff’s Motion for Summary
5 Adjudication as to the Second Cause of Action for Battery.
6
V.
7
CONCLUSION
8

9
Accordingly, for the reasons set forth above, Plaintiff respectfully requests that the
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Motion for Summary Adjudication on the cause of action for battery be granted.
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//
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//
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 1 Dated this 26th day of October, 2009. Respectfully submitted,
2
XXX LAW GROUP, LLP
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4
By /s/
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6 Attorneys for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION
 PROOF OF SERVICE
1 [CCP 1013A(3), 2015.5]

2
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in Los Angeles County. My business address is
_________________________, where this mailing occurred. I am over the age of 18 and not a
4 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
5
and e-mail. Such correspondence is deposited with the U.S. Postal Service with postage fully
6 prepaid the same day in the ordinary course of business, or sent via e-mail the same day in the
ordinary course of business.
7 On October 26, 2009, I served the foregoing documents, bearing the title:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
8 MOTION FOR SUMMARY ADJUDICATION, on the interested parties in this action, as
follows:
9

10
Name
Address
11

12 [] (BY MAIL) I placed such envelope(s) in the U.S. mail for collection and mailing on this
13
date following ordinary business practice.

14 [] (BY FEDERAL EXPRESS – NEXT DAY DELIVERY) I caused to be delivered such

envelope(s) by hand to the office of addressee(s).
15

16 [] (BY FACSIMILE) I caused to be served, via facsimile, the above-entitled documents to

the office of the addressee(s).
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[X] (BY PERSONAL DELIVERY) I caused to be delivered such envelope(s) by hand to the
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office of the addressee(s).
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[X] (STATE) I declare under penalty of perjury that the above is true and correct.
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[] (FEDERAL) I declare that I am employed in the office of a member of the bar of this
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court at whose direction the service was made.
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Executed on October 26, 2009, at Los Angeles, California.
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Name
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY ADJUDICATION