Electronically FILED by Superior Court of California, County of Los Angeles on 02/17/2021 08:44 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk

1 Bryan L. Saalfeld - 243331

[email protected]
2 Patrick A. Gillespie - 302456
[email protected]
3 MURPHY, PEARSON, BRADLEY & FEENEY
550 S. Hope Street, Suite 650
4 Los Angeles, CA 90071
Telephone: (213) 327-3500
5 Facsimile: (213) 627-2445

6 Attorneys for Defendant

MARTIN HEROLD
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF LOS ANGELES

10

11 ESTATE OF CARMEL MUSGROVE; Case No.: BC673010

RONALD MUSGROVE; ANN MUSGROVE,
12 DEFENDANT MARTIN HEROLD’S
Plaintiffs, NOTICE OF MOTION AND MOTION FOR
13 SUMMARY JUDGMENT
v.
14 RESERVATION ID: 407795978228
MARTIN HEROLD; JOEL SILVER; SILVER
15 PICTURES; SILVER-KATZ HOLDINGS; and Date: May 28, 2021
Does 1-10, Time: 9 a.m.
16 Dept: 51
Defendants.
17 Trial Date: June 7, 2021

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 TABLE OF CONTENTS
2 Page
3 NOTICE OF MOTION ............................................................................................................................ 6

4 MEMORANDUM OF POINTS AND AUTHORITIES ......................................................................... 7

5 I. INTRODUCTION ....................................................................................................................... 7

6 II. STATEMENT OF FACTS .......................................................................................................... 8

7 III. LEGAL ANALYSIS .................................................................................................................. 11

8 A. Standard for Summary Judgment. .................................................................................. 11

9 B. Undisputed Material Facts Show that Herold is Not Liable to Plaintiffs for the
Lone Cause of Action in the SAC for Wrongful Death. ................................................ 12
10
1. Herold Did Not Breach Any Alleged Duties Owed to Decedent or
11 Plaintiffs. ............................................................................................................ 13

12 a. Herold’s Relationship with Decedent Does Not Constitute a

“Special Relationship” ........................................................................... 13
13
2. Herold Did Not Cause Decedent’s Death or Plaintiffs’ Injuries. ....................... 15
14
3. It Was Not Reasonably Foreseeable that Decedent Would Go
15 Swimming, Alone, In the Middle of the Night, in Rough Seas. ........................ 17

16 4. Social Host Immunity Bars Liability Against Herold. ....................................... 18

17 IV. CONCLUSION .......................................................................................................................... 18

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 TABLE OF AUTHORITIES
2 Page
3

4 CASES

5 Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826 ................................................................................................................... 11, 12
6
Akins v. County of Sonoma
7 (1967) 67 Cal.2d 185 .................................................................................................................... 15, 16

8 Ash v. North American Title Co.

(2014) 223 Cal.App.4th 1258 ............................................................................................................. 16
9
Bigbee v. Pacific Tel. & Tel. Co.
10 (1983) 34 Cal.3d 49 ............................................................................................................................ 16

11 Brautigam v. Brooks
(1964) 227 Cal.App.2d 547................................................................................................................. 16
12
Bryant v. Glastetter
13 (1995) 32 Cal.App.4th 770 ................................................................................................................. 17

14 Carlsen v. Koivumaki
(2014) 227 Cal.App.4th 879 ............................................................................................................... 14
15
Castellon v. U.S. Bancorp
16 (2013) 220 Cal.App.4th 994 ............................................................................................................... 13

17 Consumer Cause, Inc. v. SmileCare

(2001) 91 Cal.App.4th 454 ................................................................................................................. 12
18
Edwards v. Cal. Sports
19 (1988) 206 Cal.App.3d 1284............................................................................................................... 13

20 Federico v. Superior Court

(1997) 59 Cal.App.4th 1207 ............................................................................................................... 13
21
Gaggero v. Yura
22 (2003) 108 Cal.App.4th 884 ............................................................................................................... 12

23 Hardison v. Bushnell
(1993) 18 Cal.App.4th 22 ............................................................................................................. 15, 16
24
Harland v. State of California
25 (1977) 75 Cal.App.3d 475 ................................................................................................................... 13

26 Hernandez v. City of Pomona

(2009) 46 Cal.4th 501 ......................................................................................................................... 16
27
Hilyar v. Union Ice Co.
28 (1955) 45 Cal.2d 30 ............................................................................................................................ 13

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Hinman v. Westinghous Elec. Co.
(1970) 2 Cal.3d. 956 ............................................................................................................................ 13
4
Hutchison v. Southern Cal. First Nat’l Bank
5 (1972) 27 Cal.App.3d 572................................................................................................................... 15

6 Jackson v. Ryder Truck Rental

(1993) 16 Cal.App.4th 1830 ............................................................................................................... 13
7
Jefferson v. Qwik Korner Market, Inc.
8 (1994) 28 Cal.App.4th 990 ................................................................................................................. 18

9 Ladd v. County of San Mateo

(1996) 12 Cal.4th 913 ......................................................................................................................... 13
10
Lopez v. Southern Cal. Rapid Transit Dist.
11 (1985) 40 Cal.3d 780 .......................................................................................................................... 14

12 Ludwig v. City of San Diego

(1998) 65 Cal.App.4th 1105 ............................................................................................................... 17
13
Megeff v. Doland
14 (1981) 123 Cal.App.3d 251 ................................................................................................................. 13

15 Mosley v. Arden Farms Co.

(1945) 26 Cal.2d 213 .......................................................................................................................... 15
16
Novak v. Continental Tire North America
17 (2018) 22 Cal.App.5th 189 ................................................................................................................. 16

18 Ortega v. Kmart Corp.

(2001) 26 Cal.4th 1200 ....................................................................................................................... 16
19
Pappert v. San Diego Gas & Elec. Co.
20 (1982) 137 Cal.App.3d 205................................................................................................................. 16

21 Pineda v. Ennabe
(1998) 61 Cal.App.4th 1403 ............................................................................................................... 18
22
Quiroz v. Seventh Ave. Center
23 (2006) 140 Cal.App.4th 1256 ............................................................................................................. 12

24 Regents of University of California v. Superior Court

(2018) 4 Cal.5th 607 ........................................................................................................................... 14
25
Roberts v. Guillory
26 (1972) 25 Cal.App.3d 859................................................................................................................... 13

27 Robertson v. Wentz
(1986) 187 Cal.App.3d 1281 ............................................................................................................... 13
28
Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763 ................................................................................................................... 12, 16
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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Sheffield v. Eli Lilly Co.
(1983) 144 Cal.App.3d 583................................................................................................................. 12
4
Tarasoff v. Regents of University of California
5 (1976) 17 Cal.3d 425 ........................................................................................................................... 13

6 Tresemer v. Barke
(1978) 86 Cal.App.3d 656................................................................................................................... 13
7
Union Bank v. Superior Court (Demetry)
8 (1995) 31 Cal.App.4th 573 ................................................................................................................. 12

9 United Pacific Co. v. Southern Cal. Edison Co.

(1985) 163 Cal.App.3d 700................................................................................................................. 16
10
Valdez v. J.D. Diffenbaugh Co.
11 (1975) 51 Cal.App.3d 494................................................................................................................... 15

12 Villa v. McFerren
(1995) 35 Cal.App.4th 733 ................................................................................................................. 12
13
Zoran Corp. v. Chen
14 (2010) 185 Cal.App.4th 799 ............................................................................................................... 12

15 STATUTES

16 Civil Code
§ 1714 .................................................................................................................................................. 18
17 § 1714(b) ............................................................................................................................................. 18
§ 1714(c) ............................................................................................................................................. 18
18 § 3515 .................................................................................................................................................. 13

19 Code of Civil Procedure

§ 437c(p)(2)......................................................................................................................................... 12
20
Evidence Code
21 § 665.................................................................................................................................................... 13

22 OTHER AUTHORITIES

23 Prosser and Keeton, Law of Torts (5th ed. 1984) ch. 7, Proximate Cause,
§ 41, p. 263 .......................................................................................................................................... 15
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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 NOTICE OF MOTION

2 TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE COUNSEL OF RECORD:

3 PLEASE TAKE NOTE that on May 28, 2021, at 9:00 a.m., in Dept. 51of the above entitled

4 Court, located at 111 North Hill Street, Los Angeles, CA 90012, Defendant MARTIN HEROLD

5 (“Herold”), will and hereby does move for Summary Judgment pursuant to California Code of Civil

6 Procedure section 437(c), as to the Second Amended Complaint (“SAC”) of Plaintiffs Ronald Musgrove

7 and Ann Musgrove (collectively “Plaintiffs”).

8 This Motion is made on the grounds that the undisputed material facts show that no evidence

9 exists to demonstrate that Herold is liable to Plaintiffs for their lone cause of action for Wrongful Death.
10 Plaintiffs “do[] not possess and cannot reasonably obtain, needed evidence” to support said elements.

11 Thus no triable issue of material fact exists as to any cause of action alleged against Herold in the SAC

12 and, therefore, Herold is entitled to summary judgment as a matter of law with respect to the SAC.

13 This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, the

14 concurrently produced Appendix of Evidence, supporting declaration of Martin Herold, Guilda Auraa,

15 Kenton Wong, and Bryan Saalfeld, all exhibits, papers, and pleadings contained in the Court’s file, all

16 matter of which the Court may or must take judicial notice, and all evidence and oral argument as may

17 be presented to the Court at or before the hearing on this Motion.

18

19 DATED: February 17, 2021

MURPHY, PEARSON, BRADLEY & FEENEY
20

21
By
22 Patrick A. Gillespie
Attorneys for Defendant
23 MARTIN HEROLD

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 This action arises out of the tragic, yet accidental drowning of 28-year-old Carmel Musgrove

4 (“Decedent”) in Bora Bora, French Polynesia. Decedent was staying at the Four Seasons Resort during

5 a work-trip as Defendant Joel Silver’s (“Silver”) executive assistant. Decedent was last seen in the very

6 early morning hours of August 19, 2015, when a Four Seasons night receptionist delivered matches to

7 Decedent’s bungalow upon request. Decedent’s body was later found along a lagoon shoreline some

8 400-500 yards away from her Four Seasons Resort bungalow. An investigation by the French Polynesian

9 Authorities determined that her drowning was a product of 5 factors: (1) her overconsumption of alcohol;
10 (2) her consumption of cocaine; (3) fatigue caused by overwork; (4) heatstroke after the fishing trip on

11 August 18, 2015; and (5) a midnight swim during unfavorable conditions. Two separate autopsies

12 confirmed that Decedent died from an accidental drowning with contributory factors of significant

13 alcohol and cocaine intoxication. There were no signs of foul play or sexual assault.

14 Despite the clear findings of accidental drowning due to Decedent’s own impaired state,

15 Decedent’s parents Plaintiffs Ronald Musgrove and Ann Musgrove (collectively “Plaintiffs”) seek to

16 blame someone else for their daughter’s unfortunate death in this lawsuit. Without any actual connection

17 to the accident, Plaintiffs baselessly claim that her former employer, Joel Silver, and Martin Herold

18 (“Herold”), personal chef for Mr. Silver, somehow bear fault despite the evidence.

19 The undisputed facts demonstrate that Plaintiffs cannot prevail on their claim in the Second

20 Amended Complaint (“SAC”) for Wrongful Death, as Herold did not breach any duties purportedly

21 owed to Decedent or Plaintiffs, and did not cause Decedent’s death, which was not foreseeable.

22 Specifically, the evidence demonstrates that on December 18, 2015, Decedent was advised that it was

23 unsafe to go swimming in the lagoon surrounding the bungalows because of rough seas (Separate

24 Statement of Undisputed Fact (“SS”) 13-14, 19). Thereafter, Decedent and Herold shared a bottle of

25 wine between the hours of 10:00 p.m. and 11:00 p.m. (SS 21.) After the two finished the bottle of wine,

26 Decedent returned safely to her own bungalow. (SS 22.) Around midnight after returning to her room,
27 Decedent emailed Herold wishing him goodnight. (SS 23.) She then proceeded to order room service

28 from the Four Seasons Resort, and answered the door to accept delivery of matches from the Hotel night

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 receptionist. (SS 25 - 28.) Plaintiff then placed the “do not disturb” placard on her door, and had several

2 more alcoholic drinks, cocaine, and decided to swim naked in the lagoon, disregarding the prior warning

3 concerning the rough seas. (SS 27, 32.)

4 After her body was discovered, an autopsy was performed, listing the cause of death as an

5 accident, and finding that Plaintiff’s blood alcohol content was 0.275%, more than three (3) times the

6 legal limit in California. (SS 33.) Toxicologist, Kenton Wong, will testify that for a women the size,

7 weight, and age of the Decedent, that after sharing a bottle of wine her maximum blood alcohol content

8 would have been 0.106%. (SS 36.) Further, that if Decedent had a BAC of 0.275%, her motor skills and

9 cognitive functioning would have been significantly impaired and unlikely to be able to send an email,
10 operate a phone or electronic device, send an email or text, or hang the door tag, or navigating the path

11 from Herold’s bungalow to her own. (SS 34.) Moreover, in order to go from 0.09%, Mr. Wong’s best

12 estimate of her blood alcohol level leaving Herold’s bungalow, to the 0.275% found in her body at the

13 time of death, she would have needed to consume an additional 5-6 alcoholic drinks in her room. (SS 39.)

14 All reliable evidence supports that Decedent’s tragic, accidental death was caused by her acts

15 alone. Decedent was an adult woman who chose to drink to excess and use cocaine while alone in her

16 room, and then proceeded to swim in waters that she knew were dangerous.

17 II. STATEMENT OF FACTS

18 Carmel Musgrove (“Decedent”) was born on December 30, 1986. (SS 1.) Decedent died on or

19 about August 20, 2015, in Bora Bora, French Polynesia, from an accidental drowning. (SS 2, 3.)

20 Decedent’s body was found naked on the shore of lagoon in Bora Bora. (SS. 2.) Plaintiffs allege that on

21 or about August 19, 2015, in the hours leading up to Decedent’s death, defendants, Martin Herold and/or

22 Joel Silver (“Silver”) caused or contributed to Decedent’s death. (SS 4.)

23 Plaintiffs assert a single cause of action for wrongful death against Herold in this case. (SS 5.) Herold,

24 as personal chef to Silver arrived in Bora Bora on or about August 3, 2015, to prepare the kitchen and obtain

25 necessary food in advance of the Silver’s arrival. (Id.) Decedent, an employee of Silver Pictures

26 Entertainment, arrived in Bora Bora, on or about August 5, 2015. (SS 10.) The nature of the Bora Bora trip
27 required that Decedent and Herold, both reside at the Four Seasons Hotel for the duration of the trip. (SS 8,

28 11.) Decedent and Herold were provided with their own separate bungalow at the Four Seasons Hotel. (Id.)

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 Herold, as personal chef to Silver and his guests during the Bora Bora trip, had a very regimented

2 scheduled which required him to be in the kitchen by 7:30 a.m. every day in order prepare food for the

3 Silvers’ and their guests. (SS 9.) Herold would remain in the kitchen until after lunch service, at which

4 point he would take a break and return to his bungalow to take a nap. (Id.) Around 5:00 p.m., Herold

5 would return to the kitchen to prepare the dinner service. (Id.) Herold’s day was typically finished after

6 dinner service, between 9:00 p.m. and 9:30 p.m. (Id.)

7 At no time during the Bora Bora trip did Herold require, force, or pressure Decedent to possess

8 or take drugs. (SS 46.) Herold, never provided Decedent with cocaine, used cocaine with Decedent, nor

9 see her use cocaine during the Bora Bora trip in August 2015. (SS 48.) Nor did Herold, coerce, or force
10 Decedent to go swimming in the lagoon. (SS 47.) At no time during the Bora Bora trip did Herold notice

11 Decedent suffering from heat stroke or any signs or symptoms that either would associate with heat

12 stroke. (SS 49.) Furthermore, at no time during the Bora Bora trip did Decedent express to Herold that

13 she was suffering from heat stroke or any associated symptoms. (Id.)

14 On August 18, 2015, from approximately 9:00 a.m. till noon, Decedent took a boat trip with

15 Silver and his guests. (SS 12.) During said boat trip Plaintiff had a beer. (Id.) During dinner on August 18,

16 2015, Decedent is believed to have had a glass of wine, but was not considered by other guests to be

17 visibly intoxicated. (SS 15.) Following dinner, Decedent accompanied Silver’s children, their manny,

18 Jay Goggins, and Silver’s guest Julie Fields and her son, Griffen, back to Silver’s children’s bungalow

19 to watch a movie. (SS 16.) Decedent stayed for approximately 30 minutes, before complaining of cramps

20 and leaving back to her bungalow, Decedent did not drink any alcohol while with the group in Silver’s

21 Children’s bungalow. (Id.)

22 After returning to her bungalow at or around 10:14 p.m., Decedent sent Herold an email asking

23 if he was still up, he responded that he was. (SS 18.) At or about 10:21 p.m. Karyn Silver texted Decedent

24 commenting how windy it was. (SS 19.) At around 10:28 p.m. Decedent emailed Silver, Karyn Silver,

25 and their son, a picture from the fishing trip earlier in the day. (SS 20.) Shortly after 10:15 p.m., Decedent

26 went to Herold’s bungalow. (SS 21.) Decedent and Herold proceeded to share a bottle of red wine,
27 smoked a marijuana cigarette, and kissed one another. (Id.) After less than an hour, Decedent voluntarily

28 left Herold’s room. (SS 22.) When she was leaving, she did not appear to be visibly intoxicated. (Id.)

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 Decedent made it back to her room safely at approximately 11:11 p.m. (Id.) At no time during August 18,

2 2015, did Decedent ever express to Herold any desire or intention on her part to go swimming in the

3 lagoon later that evening. (SS 50.)

4 At approximately midnight, Decedent emailed Herold “XXX” which Herold understood to mean

5 kisses. (SS 23.) After Decedent left his bungalow, Herold stayed in his bungalow for the rest of the night

6 and went to sleep, as he had to wake up early to prepare breakfast in the morning. (SS 24.)

7 Shortly after midnight, Decedent phoned the front desk of the Four Seasons Resort to request

8 matches. Four Seasons employee Guilda Auraa (“Auraa”) answered the phone. (SS 25.) During the call

9 Decedent spoke clearly and politely in English, and appeared in a happy mood. (Id.) At no point during
10 the call did Auraa speak to anyone besides Decedent, nor did she hear anyone else’s voice on the phone

11 besides Decedent. (Id.) Between 12:30 a.m. and 12:40 a.m., Auraa delivered the matches to Decedent’s

12 bungalow. (SS 26.) Upon arriving at Decedent’s bungalow, Decedent opened the door enough for Ms.

13 Auraa to see her face, and notice that her hair was down, not tied up, for example into a ponytail. (Id.)

14 Decedent smiled and greeted Auraa cordially, Decedent appeared lucid and spoke coherently, and did

15 not appear to be in any distress. (Id.) Auraa handed Decedent the matches and Decedent thanked her for

16 delivering them. (Id.) At no point during Auraa’s time outside the door of Decedent’s Bungalow in the

17 early morning of August 19, 2015, did Aura see or hear anyone else in Decedent’s room. (SS 27.) When

18 Auraa left she recalled Decedent placing a “Do Not Disturb” placard on the handle of the door to her

19 bungalow. (Id.) Auraa was the last person to see Decedent alive.

20 The next day, after Decedent did not appear for lunch, people in the group became concerned

21 having not heard from her since the night prior. (SS 30.) Silver and his company, advised the Four

22 Seasons of their concern, and Four Seasons staff eventually opened Decedent’s room to check-in on her.

23 (Id.) Upon opening her room, Decedent was not present but multiple empty or partially empty bottles of

24 alcohol, including whiskey, were in the trashcan or on the furniture in the room. (SS 31.) They also

25 discovered what appeared to be cocaine, and rolled up currency, along with the matches that were

26 delivered by Auraa earlier that morning. (Id.)

27 The layout of Decedent’s bungalow was such that in order for Decedent to access the lagoon, she

28 would need to open a sliding door, walk down six to seven stairs, then climb down a ladder. (SS 32)

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 Following Decedent’s death an autopsy of her body was performed by the French authorities.

2 During said autopsy, Decedent was listed as 66 inches tall and 130 lbs. (SS 33.) Decedent’s blood alcohol

3 concentration was also tested during the autopsy, and found to be 0.275. (Id.) Which is more than three

4 times the legal for driver in California. (Id.) At a blood alcohol concentration of 0.275 a person would

5 require assistance walking, and may be have significantly impaired motor skills and cognitive

6 functioning making it difficult to send an email, place a phone call to request room service, place a “do

7 not disturb” placard on the door, or navigate the walkway from Herold’s bungalow to Decedent’s

8 bungalow. (SS 34.)

9 Toxicology expert Kenton Wong, states that in order to reach a blood alcohol concentration of
10 0.275%, a women the height and weight of Decedent would have had to have approximately 8 alcoholic

11 drinks in her system at the time of death. (SS 35.) And that based on Decedent’s height, weight, and

12 testimony concerning her consumption of Alcohol on August 18, 2015, that after leaving Herold’s room,

13 Decedent blood alcohol concentration would have been 0.09%, and that she would have needed to

14 consume an additional 5-6 alcoholic drinks in order to reach a 0.275 blood alcohol concentration. (SS 39.)

15 The Musgrove family later approached Glenn N. Wagner, D.O. — the Chief Medical Examiner for

16 the County of San Diego — to perform a second autopsy on Decedent to confirm or refute the findings of

17 the first autopsy. (SSUMF No. 47.) Dr. Wagner concluded Decedent’s drowning was accidental with

18 contributory factors of alcohol and cocaine intoxication, and he found no evidence of foul play or sexual

19 assault. (SSUMF No. 51-52.) Dr. Wagner did not find evidence of heat stroke in Decedent during the autopsy,

20 and there is no way to scientifically measure fatigue when performing an autopsy. (SSUMF No. 53.)

21 III. LEGAL ANALYSIS

22 A. Standard for Summary Judgment.
23 “The purpose of the law of summary judgment is to provide courts with a mechanism to cut

24 through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact

25 necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A

26 “party moving for summary judgment bears the burden of persuasion that there is no triable issue of
27 material fact and that he [or she] is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th

28 at 850.) The moving party also bears the initial burden of production to make a prima facie showing that

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 there are no triable issues of material fact. Aguilar, supra, 25 Cal.4th at 861. A prima facie showing is

2 one that is sufficient to support the position of the party in question. “No more is called for.” Aguilar,

3 supra, 25 Cal.4th at 851.

4 A defendant moving for summary judgment must “show” that either: 1) one or more elements of

5 the “cause of action . . . cannot be established”; or 2) there is a complete defense to that cause of action.

6 (CCP section 437c(p)(2).) Once defendants meet this burden, the burden shifts to plaintiff to prove the

7 existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff

8 is unable to do so, then defendants are entitled to judgment as a matter of law. (Saelzler v. Advanced

9 Group 400 (2001) 25 Cal.4th 763, 780-781; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th
10 454, 468.)

11 Defendant “shows” that an essential element of plaintiff’s claim cannot be established by

12 presenting evidence that plaintiff “does not possess and cannot reasonably obtain, needed evidence.”

13 (Aguilar, supra, 25 Cal.4th at 854; see Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Zoran Corp.

14 v. Chen (2010) 185 Cal.App.4th 799, 808.) Such evidence usually consists of admissions or concessions

15 by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support

16 an essential element of the cause of action. (See Aguilar, supra, 25 Cal.4th at 855; Union Bank v.

17 Superior Court (Demetry) (1995) 31 Cal.App.4th 573, 590.) Thus, plaintiff’s own discovery responses

18 may contain admissions or concessions disproving an essential element of plaintiff’s claim. (See Villa v.

19 McFerren (1995) 35 Cal.App.4th 733, 749; Sheffield v. Eli Lilly Co. (1983) 144 Cal.App.3d 583, 611.)

20 Where plaintiffs have had adequate opportunity for discovery, their factually devoid responses to

21 discovery requests may “show” that one or more elements of their claim “cannot be established.” (Union

22 Bank, supra, 31 Cal.App.4th at 590.) Such a showing shifts the evidentiary burden to plaintiff to raise a

23 triable issue of fact as to that element of the cause of action. (CCP section 437c(p)(2).)

24 B. Undisputed Material Facts Show that Herold is Not Liable to Plaintiffs for the Lone
Cause of Action in the SAC for Wrongful Death.
25

26 “The elements of the cause of action for wrongful death are the tort (negligence or other wrongful
27 act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” (Quiroz

28 v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) To establish a cause of action for

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 Negligence, the plaintiff must prove the following: 1) a legal duty to use due care, 2) a breach of that

2 duty, and 3) the breach as the proximate or legal cause of the resulting injury. (See Federico v. Superior

3 Court (1997) 59 Cal.App.4th 1207, 1211; Jackson v. Ryder Truck Rental (1993) 16 Cal.App.4th 1830,

4 1837; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998; Ladd v. County of San Mateo (1996)

5 12 Cal.4th 913, 917-918.) “Negligence is never presumed.” (Harpke v. Lankershim Estates (1951) 103

6 Cal.App.2d 143, 145.) “No suggestion of negligence arises from the mere happening of an accident.”

7 (Edwards v. Cal. Sports (1988) 206 Cal.App.3d 1284, 1287.)

8 1. Herold Did Not Breach Any Alleged Duties Owed to Decedent or Plaintiffs.
9 “A person is presumed to intend the ordinary consequences of his voluntary act.” (California
10 Evidence Code section 665.) “[W]here a person has two avenues of approach, one safe and the other

11 dangerous, and the dangerous one is selected by the party injured, then he cannot recover if the injury

12 inflicted was due to the risk incident to the route selected.” (Roberts v. Guillory (1972) 25 Cal.App.3d

13 859, 862.) “He who consents to an act is not wronged by it.” (California Civil Code section 3515.)

14 “As a general principle, a ‘defendant owes a duty of care to all persons who are foreseeably

15 endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’”

16 (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 670.) While the question of whether one owes a duty to

17 another must be decided on a case-by-case basis, every case is governed by the rule of general application

18 that all persons are required to use ordinary care to prevent others from being injured as the result of

19 their conduct. (See, Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36.)

20 a. Herold’s Relationship with Decedent Does Not Constitute a “Special

Relationship”
21

22 “In general, one owes no duty to control the conduct of another person [citation] . . . .” (Megeff v.

23 Doland (1981) 123 Cal.App.3d 251, 257; see also Harland v. State of California (1977) 75 Cal.App.3d

24 475, 480.) Exceptions have been delineated where the defendant stands in a “special relationship” to either

25 the person whose conduct needs to be controlled or the foreseeable victim of that conduct. (Tarasoff v.

26 Regents of University of California (1976) 17 Cal.3d 425, 435 [therapist patient relationship]; see also;
27 Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1288 [parent-child relationship]; see also Hinman v.

28 Westinghous Elec. Co. (1970) 2 Cal.3d. 956, 960 [employer-employee].)

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 “Relationships that have been recognized as “special” share a few
common features. Generally, the relationship has an aspect of dependency
2 in which one party relies to some degree on the other for protection.
[Citations.] The Restatement authors observed over 50 years ago that the
3 law has been “working slowly toward a recognition of the duty to aid or
protect in any relation of dependence or of mutual dependence.”
4

5 (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 620-621 (“Regents”).)

6 The corollary of dependence in a special relationship is control. Whereas

one party is dependent, the other has superior control over the means of
7 protection. ‘[A] typical setting for the recognition of a special relationship
is where ‘the plaintiff is particularly vulnerable and dependent upon the
8 defendant who, correspondingly, has some control over the plaintiff’s
welfare.’ [Citations.]’ [Citation.] One court observed that “the epitome”
9 of such a special relationship exists between a jailer and prisoner.
[Citation.] Common carriers and their passengers present another
10 quintessential example. In Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 789, . . . we held this special relationship gives
11 common carriers a duty to protect passengers from onboard violence,
noting that passengers are sealed together in a moving vehicle, with the
12 means of entry and exit under the exclusive control of the driver. ‘Thus,
passengers have no control over who is admitted on the bus and, if trouble
13 arises, are wholly dependent upon the bus driver to summon help or
provide a means of escape.’(Ibid.)”
14

15 (Regents, supra (2018) 4 Cal.5th 607, 621.)

16 Additionally, the court in Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 893, explained that

17 the general rule was that “[t]here may be no duty to take care of a man who is ill or intoxicated, and

18 unable to look out for himself”, but clarified that “it is another thing entirely to eject him into the danger

19 of a street or railroad yard; and if he is injured there will be liability.” (Id.)

20 Here, no facts suggest that a “special relationship” existed between Herold and Decedent. Herold

21 and Decedent were not dependent on one another, and neither controlled what the other did or did not

22 do. The two were not dating, and their relationship is best characterized as friends and colleagues. In

23 fact, Decedent was dating another man at the time of the 2015 Bora Bora trip. (SS 44.) When Decedent

24 said she wanted to leave Herold’s bungalow, there was nothing that Herold could do to prevent her from

25 doing so. (SS 45.)

26 Furthermore, the case of Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879,893, entirely

27 distinguishable, and inapplicable in the instant case. Here, Decedent left Herold’s bungalow and safely

28 made it back to her own bungalow. (SS 22.) Nearly an hour after her safe return to her bungalow,

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 Decedent sent Herold a goodnight email stating “XXX.” (SS 23.) Thereafter, unbeknownst to Herold,

2 Decedent ordered room service. (SS 25-28.) Whereas in Carlsen, the defendants plied the Plaintiff with

3 alcohol, forced him to go to sit on the edge of a cliff, and then, after he fell off the cliff, abandoned him,

4 leaving him for dead. Several hours later the defendants then reported a falsified version of events to

5 the police, and the injured plaintiff was later found at the base of the cliff, unaware of how he got there.

6 (Id. at 893.)

7 Fundamentally, Herold was not in a position, let alone a “special relationship,” with Decedent

8 such that he could control her conduct. (SS 44) Therefore, he did not breach any duty owed to her, when

9 she decided to voluntarily leave his bungalow, and return safely to her own bungalow, and then voluntarily
10 proceed to drink more alcohol by herself, ingest cocaine by herself, and choose to go swimming in the

11 middle of the night, in dangerous rough seas, again by herself. (SS 13, 14, 19, 31, 34 44.)

12 2. Herold Did Not Cause Decedent’s Death or Plaintiffs’ Injuries.

13 To establish a cause of action based on negligent conduct, the plaintiff usually must establish that

14 the defendant’s conduct caused the plaintiff’s damages. (Hutchison v. Southern Cal. First Nat’l Bank

15 (1972) 27 Cal.App.3d 572, 578.) Thus, except in those cases in which the law holds the defendant

16 vicariously liable for the tortious conduct of a third person, the plaintiff must show “a reasonable

17 connection between the act or omission of the defendant and the damage which the plaintiff has

18 suffered.” (Prosser and Keeton on the Law of Torts (5th ed. 1984) ch. 7, Proximate Cause, § 41, p. 263.)

19 This element is often expressed by courts as a requirement that the defendant’s conduct be the “proximate

20 cause” or “legal cause” of the plaintiff’s damages. (See, e.g., Valdez v. J.D. Diffenbaugh Co. (1975) 51

21 Cal.App.3d 494, 509.)

22 A defendant’s conduct must also be the “proximate cause” or “legal cause” of the plaintiff’s

23 harm. (Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199; Hardison v. Bushnell (1993) 18

24 Cal.App.4th 22, 26.) “Legal cause” or “proximate cause” is not really a matter of causation at all, but

25 involves a policy determination as to whether the defendant should be held legally responsible for the

26 consequences of his or her acts. (See Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 220-221.) The
27 doctrine of legal or proximate cause limits a defendant’s liability; that is, in certain situations in which

28 the defendant’s conduct is an actual cause of the plaintiff’s harm, the defendant will, nevertheless, be

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 absolved of liability because of the manner in which the injury occurred. (Hardison v. Bushnell (1993)

2 18 Cal.App.4th 22, 26.)

3 Whether the court addresses the issue of liability in such cases in terms of duty or legal

4 (proximate) cause, the crucial question is generally whether or not the defendant could have reasonably

5 foreseen either the intervening act (see Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 55-56;

6 Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189) or a risk of harm of the type

7 suffered by the plaintiff. (See Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199; Pappert v. San

8 Diego Gas & Elec. Co. (1982) 137 Cal.App.3d 205, 210-211, see also United Pacific Co. v. Southern

9 Cal. Edison Co. (1985) 163 Cal.App.3d 700, 710-712 [no prejudicial error for trial court to state rule of
10 foreseeability of harm in instruction on negligence rather than in instruction on causation].) Thus, if an

11 independent intervening act is not reasonably foreseeable and the results that it caused were not

12 foreseeable, the defendant’s conduct is not deemed the legal (proximate) cause of the plaintiff’s injuries.

13 (Ash v. North American Title Co. (2014) 223 Cal.App.4th 1258, 1277-1278; Hardison v. Bushnell (1993)

14 18 Cal.App.4th 22, 26-29.)

15 To demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or

16 omission was a “substantial factor” in bringing about the injury, which means that plaintiff must show

17 some substantial link or nexus between the omission and injury. (See, Saelzler v. Advanced Group 400

18 (2001) 25 Ca1.4th 763, 778.) Proof of causation “must be reasonable in nature, credible, and of solid

19 value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.”

20 (Brautigam v. Brooks (1964) 227 Cal.App.2d 547, 557.) “The plaintiff must introduce evidence which

21 affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the

22 defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when

23 the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced,

24 it becomes the duty of the court to direct a verdict for the defendant.” (Ortega v. Kmart Corp. (2001) 26

25 Cal.4th 1200, 1205-1206.) The “question of [a] defendant’s negligence may be determined as a matter

26 of law where reasonable jurors can draw but one conclusion from the evidence presented.” (Hernandez
27 v. City of Pomona (2009) 46 Cal.4th 501, 521.)

28 Plaintiffs cannot establish that any act of Herold was the proximate cause or actual cause of

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 Decedent’s death. Decedent died from accidental drowning, after voluntarily choosing to go swimming

2 alone, in the middle of the night, in seas that she was aware were rough. (SS 13, 14, 19.) Further, it is

3 incontrovertible that after sharing a bottle of wine and smoking a small amount of marijuana with Herold,

4 that Decedent safely returned to her bungalow prior to midnight. (SS 17, 22, 23, 25-28.) Further, at no

5 time on the night of August 18, 2015, did Decedent ever indicate to Herold, any desire or intention on

6 her part to go swimming later that night. (SS 50.)

7 Nearly an hour after leaving Herold’s bungalow, Decedent emailed Herold “XXX.” (SS 23.)

8 Then, Decedent phoned Four Seasons Resort Room Service, and requested matches. (SS 25.) When

9 room service arrived, Decedent was observed to be coherent and in a good mood. (SS 26.) Thereafter,
10 she managed to place the do not disturb placard on her door. (SS 27.)

11 It is further undisputed that multiple bottles of alcohol, rolled up dollar bills, and cocaine residue

12 were found in Decedent’s room. (SS 31.) Expert toxicologists unequivocally state, that Decedent’s blood

13 alcohol content was 0.275%, after her body was found. (SS 33.) And that, had her blood alcohol content

14 been anywhere close to 0.275%, when she left Herold’s bungalow that she would not have been able to

15 send an email, operate a phone, answer the door, place the do not disturb placard on her door, or navigate

16 the ladder down from her balcony onto the landing, in order to get into the water. (SS 34.) Rather, based

17 on Decedent’s known behavior on the day of August 18, 2015, and early morning of August 19, 2015,

18 that Decedent would have needed to consume AT LEAST an additional five (5) to six (6) alcoholic

19 drinks AFTER she returned to her bungalow from Herold’s bungalow. (SS 39.)

20 3. It Was Not Reasonably Foreseeable that Decedent Would Go Swimming, Alone, In

the Middle of the Night, in Rough Seas.
21

22 Negligence is a fault-based theory of liability, and the defendant’s fault stems directly from the

23 reasonable foreseeability that his or her conduct will harm another.” (Ludwig v. City of San Diego (1998)

24 65 Cal.App.4th 1105, 1112.) “[T]he law of torts holds defendant amenable only for injuries to others

25 which to defendant at the time were reasonably foreseeable.” (Bryant v. Glastetter (1995) 32 Cal.App.4th

26 770, 778.)
27 “An act must be sufficiently likely before it may be foreseeable in the legal sense. That does not

28 mean simply imaginable or conceivable. Given enough imagination, everything is foreseeable . . . . If

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 the law imposed a duty to protect against every conceivable harm, nothing could function.” (Jefferson v.

2 Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 996.) “The purpose for requiring a duty as a

3 precondition to negligence liability, and for requiring the court to delineate the boundaries of the duty,

4 is to avoid the extension of liability to every conceivably foreseeable accident, without regard to common

5 sense or good policy.” (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1409.)

6 As explained in Section III(B)(2) above, Decedent’s conduct leading up to her drowning death

7 was not reasonably foreseeable. Again, Decedent was on notice of the rough seas in the lagoon on the

8 night of August 18, 2015 / early morning of August 19, 2015. (SS 13, 14, 19.) And after receiving a good

9 night email from Decedent, there is no way in which Herold could have foreseen that Decedent was
10 going to continue to drink, take cocaine, and decide to go swimming in the lagoon. (SS 23.) Plaintiffs

11 have no contrary evidence. The fact that Decedent went swimming in the lagoon at night under the

12 influence of cocaine and alcohol was simply too far outside the realm of reasonable possibilities to place

13 Herold on notice of Decedent’s behavior and protect against it. The mere happening of the drowning

14 does not make it foreseeable. Because Decedent’s conduct was not foreseeable, Herold is not liable for

15 breaching any alleged duties with respect to her conduct.

16 4. Social Host Immunity Bars Liability Against Herold.

17 Civil Code section 1714(b) states in relevant part “the furnishing of alcoholic beverages is not

18 the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic

19 beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” While

20 Civil Code section 1714(c) further states “no social host who furnishes alcoholic beverages to any person

21 may be held legally accountable for damages suffered by that person, or for injury to the person or

22 property of, or death of, any third person, resulting from the consumption of those beverages.”.

23 Here, at best Plaintiffs claim that by sharing a bottle of wine with the Decedent on August 18,

24 2015, that Herold was liable for her drowning. As explained Section III(B)(2) above, not only is that

25 claim false, but it is entirely irrelevant as Herold is immune from liability pursuant to Civil Code § 1714.

26 IV. CONCLUSION
27 There are no genuine, triable issues as to any material fact and Herold is entitled to judgment as

28 a matter of law against Plaintiffs with respect to the SAC. The evidence supporting the Motion

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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
 1 demonstrates no evidence exists to prove Herold is liable to Plaintiffs for the sole cause of action in the

2 SAC for Wrongful Death. Plaintiffs “do[ ] not possess and cannot reasonably obtain, needed evidence”

3 to support said elements. Based upon the undisputed material facts set forth in Herold’s Separate

4 Statement in support of the Motion, and the evidence supporting this Motion, Herold respectfully

5 requests that the Court grant the Motion and enter judgment in favor of Herold and against Plaintiffs, as

6 a matter of law, with respect to the SAC.

7 DATED: February 17, 2021

MURPHY, PEARSON, BRADLEY & FEENEY
8

9
By
10 Patrick A. Gillespie
Attorneys for Defendant
11 MARTIN HEROLD
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DEFENDANT MARTIN HEROLD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
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ESTATE OF CARMEL MUSGROVE ET AL VS MARTIN HERROLD ET AL
Case Number: BC673010 Case Type: Civil Unlimited Category: Other Personal Injury/Property
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Date Filed: 2017-08-18 Location: Stanley Mosk Courthouse - Department 51

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MARTIN HERROLD ET AL BC673010
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