Judge: Armen Tamzarian, Case: 21STCV23920, Date: 2023-12-05 Tentative Ruling

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Case Number: 21STCV23920    Hearing Date: February 27, 2024    Dept: 52

Plaintiff Mikel Rastegar’s Motion for Summary Judgment and/or Summary Adjudication

Plaintiff Mikel Rastegar moves for summary judgment or summary adjudication of his first amended complaint against defendants Mark Blankenship and Jennifer Harper.  Plaintiff’s motion is procedurally defective. 

As to summary judgment, the motion is not proper because it would not resolve plaintiff’s entire first amended complaint.  “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (CCP § 437c(a)(1).)  In contrast, “[a] party may move for summary adjudication as to one or more causes of action within an action.”  (Id., subd. (f)(1).)  “Unlike a summary judgment, which terminates the entire action and results in an immediate, appealable judgment [citations], summary adjudication orders do not terminate the action but merely eliminate the need to prove or disprove at the subsequent trial the particular claim or defense that has been adjudicated.”  (6 Witkin, Cal. Procedure (6th ed. 2023) Proceedings Without Trial, § 313.)  

            Plaintiff’s memorandum of points and authorities states, “The sole cause of action in the Complaint is for breach of contract, based on the Lease.”  (Memo, p. 6.)  That is incorrect.  Plaintiff’s operative first amended complaint alleges five causes of action: (1 -3) breaches of contract, (4) fraud, and (5) common counts.  Plaintiff has not requested dismissal of any cause of action.  Plaintiff’s initial complaint—which was superseded by the first amended complaint—also does not allege a sole cause of action for breach of contract.  It alleges three causes of action: (1) breach of contract, (2) fraud, and (3) common counts.

Plaintiff’s motion does not seek to establish his causes of action for fraud or common counts against defendants.  This motion therefore does not constitute a motion for summary judgment.  At most, the motion seeks summary adjudication.

            As to summary adjudication, the motion is procedurally defective because it does not identify which cause(s) of action it targets.  “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”  (Cal. Rules of Court, rule 3.1350(b).)   

            Plaintiff’s notice of motion does not specify any cause of action for which plaintiff seeks summary adjudication.  Instead, it states plaintiff “will and hereby does move for summary judgment pursuant to Code of Civil Procedure § 437c in favor of Plaintiff and against Defendants.”  It further provides, “Plaintiff prays as follows: 1. That the Court issue a Summary Judgment in favor of Plaintiff and against Defendants; 2. There is no triable issue of material fact with respect to the following matters for the reasons indicated:” followed by seven conclusions of fact or law, none of which constitutes an entire cause of action or other issue subject to summary adjudication. 

Plaintiff’s separate statement of undisputed material facts also does not comply with California Rules of Court, rule 3.1350 for the same reason.  It provides, “Plaintiff MIKEL RASTEGAR hereby submits this separate statement of undisputed material facts, together with reference to supporting evidence, in support of its Motion for Summary Judgment and Summary Adjudication against Defendants MARK BLANKENSHIP and JENNIFER ANNE HARPER AKA JENNIFER ANNE FARKAS as follows:”, followed by 26 material facts.  The separate statement does not state “the specific cause of action.”  (Rule 3.1350(b).)  Moreover, it does not “separately identify … [e]ach cause of action … that is the subject of the motion.”  (Rule 3.1350(d)(1)(A).) 

Even if it sufficed to specify the targeted cause of action only in the memorandum of points and authorities, plaintiff did not do so.  As discussed above, the memorandum of points and authorities indicates plaintiff moves for summary judgment or adjudication of his “sole cause of action … for breach of contract.”  (Memo, p. 6.)  That does not identify any specific cause of action because plaintiff’s operative complaint alleges three different causes of action for breach of contract.

            These procedural defects deprived defendants of proper notice and due process as to what, precisely, plaintiff seeks summary adjudication of.  The procedural defects also prohibit the court from making a clear order granting summary adjudication as to any specific cause of action.