Judge: Andre De La Cruz, Case: 2020-01152736, Date: 2023-08-07 Tentative Ruling

Motion for Summary Judgment and/or Adjudication filed by Marcus & Millichap Real Estate Investment Services, Inc. on 5/22/23

The motion of Defendant Marcus & Millichap Real Estate Investment Services, Inc. (“Defendant”) for summary judgment or, in the alternative, summary adjudication, is DENIED.

A defendant moving for summary judgment satisfies his or her initial burden by showing 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. CCP § 437c(p)(2). The scope of this burden is determined by the allegations of the plaintiff’s complaint. FPI Development v. Nakashima, 231 Cal. App. 3d 367, 381-382 (1991) (pleadings serve as the outer measure of materiality in a summary judgment motion). Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 850 (2001).

Defendant moves for summary judgment as to all causes of action alleged against it in the First Amended Complaint, i.e., the fourth cause of action for misrepresentation and the fifth cause of action for fraud.

Defendant contends that Ohio substantive law applies to this case. The only argument in support of the application of Ohio law to this case appears in footnote 3 of the moving papers, wherein Defendant asserts “because the brokerage of the Property was subject to Ohio law and regulations, Ohio substantive law is cited for the merits of the case.” Thereafter, Defendant only argues the merits of the motion under Ohio substantive law.

Defendant fails to meet its burden on this motion because it has not provided sufficient information for this Court to reach a determination that Ohio substantive law should be applied. “[G]enerally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event he must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it.” Hurtado v. Superior Ct., 11 Cal. 3d 574, 581 (1974)

California follows a three-step “governmental interest analysis” to address conflict of laws claims and ascertain the most appropriate law applicable to the issues where there is no effective choice-of-law agreement. Washington Mut. Bank, FA v. Superior Ct., 24 Cal. 4th 906, 919 (2001). “[A] separate conflict of laws inquiry must be made with respect to each issue in the case. Id. at 920.

Here, Defendant has not addressed any of the three steps. Accordingly, it has not persuaded the Court that Ohio law should apply. Because Defendant failed to demonstrate that Ohio law should be applied, and Defendant has not provided any substantive analysis under California law, the motion is denied.

Moving party to give notice.