Judge: Alison Mackenzie, Case: 21STCV39486, Date: 2024-04-29 Tentative Ruling
Case Number: 21STCV39486 Hearing Date: April 29, 2024 Dept: 55
NATURE OF PROCEEDINGS:
Motion Of Plaintiff/Cross-Defendant Tony Lewis For Summary Judgment, Or In The
Alternative, Summary Adjudication.
BACKGROUND
TONY LEWIS (“Plaintiff”) filed suit against JASON E.
UPCHURCH as personal representative of the Estate of DARLENE J.
UPCHURCH-FRIEDMAN (“Upchurch”), and
JEFFERSON LA BREA D&J PROPERTIES, LLC (“Jefferson”) (Upchurch and
Jefferson collectively referred to herein as “Defendants”) alleging, among
other claims, a claim for declaratory relief in connection with a Partnership
Agreement and Operating Agreement purportedly entered into between Plaintiff
and Darlene J. Upchurch-Friedman for properties located on La Brea Avenue and W.
Jefferson Boulevard in Los Angeles (the “Property”).
Defendants’ Cross-Complaint alleges claims against Plaintiff
for trespass, intentional interference with prospective economic relations,
breach of fiduciary duty, and declaratory judgment. In addition, Jefferson
alleges a claim for intentional interference with contractual relations and
Upchurch alleges a claim for elder abuse.
Jefferson is in bankruptcy and thus subject to a bankruptcy
stay. But Upchurch is not in bankruptcy. Now, Plaintiff brings a motion for summary
adjudication that Upchurch has no defense to Plaintiff’s claim for declaratory
relief. Plaintiff also seeks summary judgment or, alternatively, summary
adjudication that all of Upchurch’s claims in the Cross-Complaint lack merit.
Upchurch opposes the motion.
EVIDENTIARY RULINGS/REQUESTS FOR JUDICIAL
NOTICE
The Court sustains Upchurch’s objection number 23 and overrules
the other objections. The Court grants the unopposed requests for judicial
notice filed by Plaintiff and Upchurch.
LEGAL STANDARD
In moving for summary judgment or summary
adjudication, a “plaintiff . . . has met his or her burden of showing that
there is no defense to a cause of action if that party has proved each element
of the cause of action.” Code Civ. Proc.,
§ 437c(p)(1). The burden then shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to the cause of action or a
defense thereto. Code Civ. Proc., § 437c(p)(1).
For summary judgment or adjudication brought by a
cross-defendant, the moving party has the initial burden of showing a cause of
action has no merit “if the party has shown that one or more elements of the
cause of action … cannot be established, or that there is a complete defense to
the cause of action.” Code Civ. Proc., § 437c(p)(2). A party moving for summary
adjudication of an affirmative defense has the initial burden to make a prima
facie showing that that the affirmative defense is without merit. Continental
Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1199-1200. “[T]he
defendant must make an affirmative showing that the plaintiff will be unable to
prove its case by any means.” Weber v. John Crane, Inc. (2006) 143
Cal.App.4th 1433, 1439. “Summary judgment is proper only where there are no
triable issues of material fact and the moving party is entitled to judgment in
its favor as a matter of law.” Assad v. Southern Pacific Transportation Co.
(1996) 42 Cal.App.4th 1609, 1612.
ANALYSIS
1. Complaint’s
Claim for Declaratory Relief and Cross-Complaint’s Sixth Cause of Action for
Declaratory Judgment
Plaintiff’s declaratory relief claim seeks a
declaration that, inter alia, Plaintiff is a member and manager of Jefferson pursuant
to the Partnership Agreement and Operating Agreement. Similarly, Upchurch’s
claim for declaratory judgment seeks a declaration that the estate of Ms.
Upchurch-Friedman is the sole member of Jefferson.
Plaintiff contends that Upchurch has no defense to Plaintiff’s
claim and cannot establish his own claim for declaratory judgement because the
undisputed facts establish that Plaintiff is a member and manager of Jefferson
and he never sold his interest in Jefferson and/or any such sale was rescinded
by the parties.
The elements of a claim for declaratory relief are: 1)
person seeks a declaration of his or her rights or duties with respect to
another or in respect to property; and 2) an actual controversy. Ludgate
Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App 4th 592, 605-606.
Plaintiff sets forth facts in his declaration to support
his claim and dispute Upchurch’s claim and therefore shifts the burden to
Upchurch. But the Court concludes, like the motion decided 4/25/23, that triable
issues of fact exist as to whether the 2014 Membership Purchase Agreement was or
was not a sham. Def’s Response to Pl’s UMF Nos. 7-8, 10-11, 13-16, 153-154, 156-157,
159-162. This includes triable issues of fact as to whether Ms. Upchurch-Friedman
took steps after Plaintiff’s alleged repurchase of his interests in Jefferson
consistent with Plaintiff’s version of events. Id., Nos. 17, 19-27, 163-173. For
instance, Plaintiff testified to taking steps to legitimately repurchase a 30
percent membership interest, but he lacks a written, executed modification
required by agreement. Russell Glazer Decl., Ex. 1 (Plaintiff’s depo.), pp.
246, 262-264. See Dart Indus., Inc. v. Com. Union Ins. Co. (2002) 28
Cal.4th 1059, 1068 (written contract terms may be proved by oral evidence, if
the proponent lacks possession or control of a writing not reasonably
procurable, subject to any disputes over terms or injustice and unfairness).
Thus, the Court denies the motion as to the parties’
respective claims for declaratory relief.
2. Cross-Complaint’s
First Cause of Action for Trespass
Plaintiff argues that the trespass claim in the
Cross-Complaint fails because he has been and is a member and manager of Jefferson
and therefore has had the right to enter the Property.
The elements of a claim for trespass are: 1) Plaintiff's
ownership, or control, of the property; 2) defendant's intentional, reckless,
or negligent, entry onto property; 3) lack of permission for entry, or actions
in excess of permission; 4) harm; and 5) the actions were a substantial factor
in causing harm. Ralphs Grocery Co. v. Victory Consultants, Inc. (2017)
17 Cal.App.5th 245, 262.
As analyzed with respect to the first issue, there are
disputes about whether Plaintiff remained a member and manager of Jefferson having
control over and permission to enter the property.
Thus, the Court denies the motion as to this issue.
3. Cross-Complaint’s
Second
Cause of Action for Intentional Interference with Contractual Relations and Third
Cause of Action for Intentional Interference with Prospective Economic
Relations
Plaintiff argues that he has been and is a member and
manager of Jefferson and therefore did not wrongfully interfere with any
contractual or economic relations. Plaintiff’s arguments about standing with respect
to the second cause of action for intentional interference with contractual relations
is inapposite because the Cross-Complaint makes clear that only Jefferson (not
Upchurch) asserts that claim against Plaintiff.
As for the Third Cause of Action, Upchurch sues as personal
representative of the Estate of Darlene J Upchurch-Friedman regarding the
decedent’s property interests. See Cross-Complaint, ¶¶ 4-6. Thus, injury to the
individual cross-complainant is not an issue framed by the pleading. Instead,
injury to the decedent is the issue alleged. “Generally, an executor or other
personal representative is the person authorized to maintain or defend an
action on behalf of a probate estate.” Ring v. Harmon (2021) 72
Cal.App.5th 844, 850. Parties moving for summary judgment cannot base the
motion upon theories not pled. ….” Nieto
v. Blue Shield of Cal. Life & Health Ins. Co. (2010) 181 Cal.App.4th
60, 75. And as explained above, triable issues of fact exist as to Plaintiff’s
status with respect to Jefferson.
Thus, the Court denies the motion as to this issue.
4. Cross-Complaint’s
Fourth Cause of Action Breach of Fiduciary Duty
Plaintiff contends that he has been and is a member
and manager of Jefferson and has exercised business judgment in good faith. Further,
he again contends that Upchurch has no standing to assert this claim.
A fiduciary owes duties of care. E.g., Salahutdin
v. Valley of Cal., Inc. (1994) 24 Cal.App.4th 555, 563. “The presumption
created by the business judgment rule is not absolute. ” Bezirdjian v.
O'Reilly (2010) 183 Cal.App.4th 316, 323. “‘The business judgment rule does
not shield actions taken without reasonable inquiry, with improper motives, or
as a result of a conflict of interest.’”
Kruss v. Booth (2010) 185 Cal.App.4th 699, 728. “In most cases,
‘the presumption created by the business judgment rule can be rebutted only by
affirmative allegations of facts which, if proven, would establish fraud, bad
faith, overreaching or an unreasonable failure to investigate material facts.’”
Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020,
1046.
Here, the circumstances in evidence reasonably infer
that Plaintiff acted with improper motives to take financial advantage of one
having severe mental and physical problems, thereby creating an issue for the
factfinder to resolve one way or the other. E.g., Russell Glazer decl., ex. 2
(Plaintiff’s special interrogatory responses), pp. 28-31.
Thus, the Court denies
the motion as to this issue.
5. Cross-Complaint’s
Fifth Cause of Action for Elder and Dependent Adult Financial Abuse
Plaintiff argues that this claim is barred by the statute
of limitations. Also he asserts that Ms. Upchurch-Friedman was not a dependent
adult and not exploited. In support, Plaintiff filed a request for judicial
notice of her birthdate.
Claims under the Elder Abuse Act have a two-year
statute of limitations. Samantha B. v. Aurora Vista Del Mar, LLC (2022)
77 Cal.App.5th 85, 96 (citing Code Civ. Proc., § 335.1). Generally, this type
of claim involves financial abuse or neglect of an elder or dependent. E.g., Carter
v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407.
The Court determines that there are triable issues of
material fact as to whether the Statute of Limitations expired as to an entire
cause of action. See Def’s Response to Pl’s UMF Nos. 144; Def and
Cross-Complainant’s Add’l Material Facts Nos. 174-192. For example, as to when
Plaintiff should have known of claim accrual, while an attorney had mailed a
letter for Plaintiff not to have any contact with Ms. Upchurch-Friedman, it was
only equivocal about Plaintiff continuing with business participation, until
that issue unequivocally arose later. See, e.g., Russell Glazer Decl., Exs. 12 (6/15/15
letter to Plaintiff) and 13 (6/30/15 letter from Plaintiff about continuing
with business participation).
Also, there are disputes about whether Ms.
Upchurch-Friedman was a dependent adult financially abused. Def and
Cross-Complainant’s Add’l Material Facts Nos. 174-192. For example, Plaintiff’s
interrogatory responses infer that Plaintiff at some point discovered she has a
heavy drinker, manic depressive and in financial distress, while Plaintiff continued
to enter into financial arrangements with her. See Russell Glazer Decl., Ex. 2
(Plaintiff’s special interrogatory responses), pp. 28-31. Such disputes are
properly raised in opposition, because the Cross-Complaint, paragraph 73,
alleges a dependent adult, and not just one over 65 years old.
Thus, the Court denies the motion as to this issue.
CONCLUSION
Therefore, the Court denies the motion entirely, as to
all noticed issues.