Judge Carolyn M. Caietti, Case Number: 37-2022-00034047-CU-FR-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2022-00034047-CU-FR-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Fraud Summary Judgment / Summary Adjudication (Civil) 37-2022-00034047-CU-FR-CTL AMERICAN ICE INC VS TOMA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Heveen Toma's Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.

Preliminary Matters Plaintiffs' objections Nos. 8, 14, 17 and 18 are sustained. All other objections are overruled. (ROA 48.) The Court did not consider Defendant's late amended and supplemental separate statements. (ROA 56-57; C.C.P., � 437c(a)(2).) Defendant's objections are overruled; however, the Court has not considered any legal conclusions.

(ROA 58.) In light of these rulings, Plaintiffs' objections are overruled. (ROA 59.) Discussion In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must '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.) 'Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement.' (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 876, rev. filed (Jan. 16, 2024).) Here, Defendant's separate statement does not comply with California Rules of Court, rule 3.1350(d). Minimally, it does not state in numerical sequence the undisputed material facts and does not separately identify each cause of action or each supporting material fact claimed to be without dispute with respect to the cause of action. If summary adjudication is sought in the alternative as it is here, the specific cause of action must be stated specifically in the notice of Calendar No.: Event ID: TENTATIVE RULINGS

3051817 47 CASE NUMBER: CASE TITLE: AMERICAN ICE INC VS TOMA [IMAGED] 37-2022-00034047-CU-FR-CTL motion, 'and be repeated, verbatim, in the separate statement. (CRC 3.1350(b).) Defendant did not do that here.

Defendant also improperly attempts to shift the burden to Plaintiff several times by arguing there is 'no evidence' Defendant converted or defrauded Plaintiffs of any funds. (Ex., Memo., at pp. 6:14-16, 7:8, 10, 12, 15, 24; 8:23-25; 9:3-11.) It is not enough for a defendant to show merely that a plaintiff has no evidence on a key element of a plaintiff's claim. Rather, a moving defendant's initial burden is to present evidence that either conclusively negates an element of each of the plaintiffs' causes of action or shows that plaintiffs do not possess, and cannot reasonably obtain, evidence necessary to establish at least one element of each cause of action. (Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 979.) Defendant also did not meet his burden of conclusively negating an element of each cause of action.

Defendant's memorandum does not cite to any of the undisputed material facts. (See, Memo. at � V [Conversion]; � VI [Fraud by Concealment; � VII [Common Counts].) Defendant's introduction also argues the Court should dismiss the case under the doctrine of in parti delecto because Plaintiffs' revenue and compensation policy, procedure and practice is illegal. This is not addressed in the notice, separate statement, nor further assessed in the memorandum and not supported by admissible evidence.

Notwithstanding, disputed facts exist as to whether Defendant committed conversion and fraud. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240 [conversion elements]; Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162 [fraud elements].) Plaintiffs' evidence, including the declarations of Hani Toma and Faris Stephan, create a dispute concerning the use of Defendant's credit card, which Defendant admits to using for personal expenses. This bears upon whether Defendant wrongfully disposed of Plaintiffs' property (conversion) and intended to defraud Plaintiff by intentionally concealing or suppressing the fact (concealment). Finally, this evidence also shows a dispute over whether Defendant is indebted to plaintiff in a certain sum of money had and received by Defendant for Plaintiff's use. (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454-55.) For these reasons, the motion is DENIED.

Concluding Orders If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant is ordered to give written notice of the Court's final ruling on all appearing parties by May 7, 2024.

Defendant is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion paperwork.

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