Judge: Barbara M. Scheper, Case: 22STCV27577, Date: 2023-06-29 Tentative Ruling

Case Number: 22STCV27577    Hearing Date: December 5, 2023    Dept: 30

Dept. 30

Calendar No.

Damavandi vs. Kohanbashiri, et. al., Case No. 22STCV27577

Tentative Ruling re:  Plaintiff’s Motion for Summary Adjudication

Plaintiff Bijan Damavandi (Plaintiff) moves for summary adjudication against Defendant Iraj Kohanbashiri (Defendant) as to Plaintiff’s first cause of action for specific performance. The motion is granted.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and if not to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the moving party must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense. (Code Civ. Proc, § 437c, subd. (p)(2).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiff and Defendant are 50% shareholders in the company Lincoln Millennium Car Wash, Inc. (Lincoln) (UMF 3.) Lincoln owns and operates a car wash business and real property in Venice, California. (UMF 2.) The parties entered into a Shareholders Agreement (the Agreement) for Lincoln effective November 16, 2006, and executed a First Amendment to the Agreement effective February 6, 2009. (UMF 6; Comp. ¶¶ 11-12, Ex. A, Ex. B.)

The Agreement, as amended, provides Plaintiff (and not Defendant) the right to make an offer for all shares of the other shareholder. (UMF 13; Plaintiff’s Exbibits (PE), Ex. F [94].) To make the offer, Plaintiff must deliver written notice of the offer to the other shareholder, including the purchase price, and deposit $150,000 in escrow. (UMF 15; PE, Ex. F [75].) The offeree shareholder is then provided thirty days to notify Plaintiff of his choice of one of two options: (1) Accept the offer for the shares at the purchase price set; or (2) Purchase the shares of Plaintiff at a higher price, determined via an auction-style process between the shareholders. If the offeree does not respond within thirty days, it is deemed that the offeree has accepted the offer to purchase the shares at the given price. (UMF 15-21; PE, Ex. F [94].) The closing for the sale must be held no more than four months after the terms of the offer have been determined. (PE, Ex. F [95].)

On April 29, 2022, Plaintiff made a purchase offer under the Agreement by depositing $150,000 in escrow and mailing a Purchase Offer Notice to Defendant. The Offer was made at the price of $3,000,000, minus 50% of all outstanding debt at time of closing, plus 50% of the book value of all remaining inventory at closing. (UMF 24-25; PE, Ex. H.) Defendant received the Purchase Offer Notice on May 2, 2022. (UMF 29.)

On May 24, 2022, the parties met in person in an attempt to re-negotiate the Purchase Offer Notice. (UMF 32.) The parties memorialized the details of this meeting in a written memorandum, termed the “Farsi Memo.” (PE, Ex. J.) In the Farsi Memo, the parties agreed that [Plaintiff] will purchase 10% of the carwash on 7/1/22 at the seven million dollar valuation according to the valuation of [Plaintiff’s] attorney.” The parties also agreed that “[Plaintiff] has the purchase and sale right and [Defendant] can purchase at [that] amount and [Defendant] shall be allowed 4 months in time. [Defendant] cannot set the purchase price for [Plaintiff].” (PE, Ex. K.) The Farsi Memo further provided, “The previous contract is effective and can be implemented as before,” and “[Defendant] and [Plaintiff] cannot renege on this contract after it is translated into English or for another reason.” (Ibid.)

The following day, Plaintiff texted Defendant. The English translation of this text (originally sent in Farsi), including notes from the translator, is given as follows:

I spoke with my attorney and he says writing a contract takes 2 pairs*(translators' note: this could be a typo, given the context this word could mean "weeks".) and this is neither good for you and nor good for me So, I want you to respond to my suggestion for purchase in the next 2 to 3 days If no tears*(translators' note: this could be a typo, given the context another word could be "problem".) or disagreements arise within the next 2 or 3 weeks. I give this contract to you with all of its points  I cannot wait 2 or 3 weeks to see if we have a contract.

(PE, Ex. L, Ex. M.)

Defendant did not respond to Plaintiff’s Purchase Offer Notice within 30 days of receipt. On June 3, 2022, Plaintiff sent Defendant a letter deeming the purchase offer accepted based on Defendant’s lack of response. (PE, Ex. N.)

On August 4, 2022, Plaintiff delivered to Defendant notice of escrow closing, with instructions to Defendant for closing escrow. (PE, Ex. T.) Defendant has refused to execute the escrow instructions or transfer his interest in Lincoln to Plaintiff. (UMF 58.)

Plaintiff’s cause of action for specific performance seeks an order directing Defendant to convey his interest in Lincoln to Plaintiff, comply with the escrow instructions, and return any and all property belonging to Lincoln. (Comp. ¶ 40.) “To obtain specific performance after a breach of contract, a plaintiff must generally show: ‘(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. [Citations.]’ ” (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)

Defendant does not present any facts in opposition to the motion, but argues that this motion should be continued pursuant to Code Civ. Proc. § 437c, subd. (h), to allow Defendant to obtain further discovery.

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc. § 437c, subd. (h).)

To be entitled to a continuance under section 437c, subd. (h), a party should “explain why [they] believed the facts they sought through the [discovery] actually existed [and] why these facts were essential to oppose the summary judgment motion.” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420.) “Code of Civil Procedure section 437c, subdivision (h) requires more than a simple recital that ‘facts essential to justify opposition may exist.’ The affidavit or declaration in support of the continuance request must detail the specific facts that would show the existence of controverting evidence. [Citations.] There is good reason for this more exacting requirement. The statute cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist. The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.)

The declaration should show (1) facts that establish a likelihood that controverting evidence may exist and why the information sought is essential to opposing the summary judgment motion, (2) specific reasons why this evidence cannot be presented at the present time, (3) an estimate of the time necessary to obtain this evidence, and (4) the specific steps or procedures that the party opposing the summary judgment motion intends to use to obtain this evidence.  (Johnson v. Alameda County. Med. Ctr. (2012) 205 Cal.App.4^th 521, 532.

In exercising discretion under CCP Section 437c(h), a judge may properly consider the extent to which the requesting party’s failure to secure the contemplated evidence results from this party’s lack of diligence.  (Rodriquez v. Oto (2013) 212 Cal.App.4^th 1020, 1038.)  A good faith showing that further discovery is needed to oppose summary judgment requires some justification as to why this discovery was not completed sooner.  (Cooksey v. Alexakis (2004) 123 Cal.App.4^th 246, 257; Bushling v. Fremont Med. Ctr. (2004) 117 Cal.App.4^th 493, 511-512.)

Defendant’s counsel states in his declaration that Plaintiff has failed to provide proper responses to his written discovery, served June 6, 2023. (Mashal Decl. ¶¶ 3-6.) The written discovery includes interrogatories asking Plaintiff to identify all facts and documents supporting Plaintiff’s first cause of action for specific performance, and all persons with knowledge of those facts. (Mashal Decl. ¶ 4.) Defendant has filed a Motion to Compel Further Responses to Special Interrogatories, Form Interrogatories, Requests for Admissions, and Requests for Production, which is currently scheduled for hearing on December 6, 2023. Defendant’s counsel also states that Defendant will schedule and conduct Plaintiff’s deposition. (Mashal Decl. ¶ 6.)

Plaintiff argues that Defendant has not sufficiently identified the “facts essential to justify opposition” that would be revealed through further discovery. The Court agrees. Defense counsel’s declaration in support does not describe any “particular essential facts that may exist,” or “specific facts that would show the existence of controverting evidence.” (Lerma, 120 Cal.App.4th at 715.)

Moreover, Defendant’s counsel’s declaration fails to address in any way why the evidence is not available to present in opposition to this motion.  The instant action was filed over a year ago on August 23, 2022.  Trial is scheduled for April 8, 2024.  Plaintiff filed the instant motion on September 19, 2023.  Apparently, Defendant has not deposed the Plaintiff and only served written discovery on June 6, 2023.  It appears to the Court that Defendant has failed to conduct any meaningful discovery even as the trial date looms.  Defendant proposes no plan for how all of this discovery can be conducted before the discovery cut-off or why it was not sought sooner.  Furthermore, Defendant surely has personal knowledge of his own dealings with Plaintiff and any documents associated with the negotiation making his counsel’s failure to detail the specific facts that would show the existence of controverting evidence that much more inadequate.

Based on the foregoing, the Court denies Defendant’s request to deny or continue the instant motion pursuant to CCP Section 437c(h).

Plaintiff’s evidence is sufficient to meet his burden to show no triable dispute of material fact exists as to the cause of action for specific performance. Accordingly, the motion is granted.