Judge: Craig Griffin, Case: Vo v. Hatti et al, Date: 2023-05-22 Tentative Ruling

Before the Court is the Motion for Summary Judgment or Alternatively Summary Adjudication filed on 2/27/23 by moving parties Vikram Hatti (“Hatti”), Westminster Radiology Group, LLC (“WRG”), and Bluebeam Radiology, P.C. (“Bluebeam”) (collectively here, “MPs”).  The Motion is DENIED.


Summary judgment is proper where the evidence shows there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) To satisfy this burden, a defendant moving for summary judgment must establish that one or more of the elements of a cause of action cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular cause of action or the proffered defense thereto. (Id.) The plaintiff must set forth specific facts demonstrating a triable issue of material fact exists. (Id.; C.C.P. § 437c(o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) However, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law” (Aguilar, supra, 25 Cal.4th at 850.) The moving party’s papers are to be strictly construed, while the opposing party’s papers are to be liberally construed. (Comm. to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)  The court may not make credibility determinations, or weigh the evidence, on a motion for summary judgment: all evidentiary conflicts are to be resolved against the moving party. (McCabe, supra, 100 Cal.App.4th at 1119.) 


Here, the Motion argues that Plaintiff’s entire action fails as she cannot show that she entered into a partnership agreement granting her a 50% ownership interest in WRG, as Plaintiff and Hatti do not speak the same language, and never communicated with one another at all.


However, the evidence presented is sufficient to demonstrate a triable issue of material fact as to whether a partnership existed.  Plaintiff asserts that she entered into the alleged partnership agreement with Hatti in August 2012, through her husband “Kenny” Vo, on the stated terms. (AF 3-9; ROA 452 Ex. U at pp. 50-51, 59-61, 67.) The evidence presented demonstrates that K-1s were issued to Plaintiff as an individual partner in WRG from 2013-2016. (ROA 452, Ex. M; ROA 471, Ex. 10.)  Evidence has also been presented to show that shareholder distributions were repeatedly made to Plaintiff by WRG. (ROA 452, Ex. M; ROA 471, Ex. 28.)   The evidence presented also demonstrates, among other things, that Hatti communicated with Mr. Vo about Plaintiff’s interests (ROA 471, Ex. 13], and that in 2016, Hatti made an offer to Mr. Vo proposing to purchase “your portion of WRG” (UF 58, 59; ROA 452 Exs. P, Q), and that in 2017, Hatti referred to Mr. Vo as his “former partner” (ROA 471, Ex. 14).  In addition, evidence has been presented to show that Nr. Vo and Hatti repeatedly communicated about WRF’s operations and distributions. (ROA 471, Exs. 1-9, 17 and 25; ROA 452, Exs. G, T.)  The evidence presented is sufficient to demonstrate that a triable issue of material fact exists as to whether a partnership existed.


MPs argue in the alternative that even if there was some sort of partnership, it ended in 2017, based on an Asset Purchase Agreement (the “APA”). (ROA 452, Ex. R.)  But MPs have not shown why that APA, which expressly carved out accounts receivable, would preclude Plaintiff’s claims here.  And Plaintiff has presented evidence here to show that she specifically demanded payment thereon in 2018. (ROA 471, Ex. 20.)


The Motion for Summary Judgment is therefore DENIED.


With regard to the alternative request for summary adjudication of issues, the Motion also fails.  As a preliminary matter, the Motion fails to comply with C.R.C 3.1350(b) [“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.”].  Instead, it presents various issues in the Notice, and then different “Issues” in the Separate Statement.


But even if the Court were to consider the various “Issues” as so presented, the Motion would still fail.  Most of the arguments therein are premised on the assertion that no partnership ever existed. As discussed above, that is not established here. The Motion as to the First, Second, Third, Fourth and Sixth Causes of Action (each a “COA”) thus fails.  As punitive damages may be claimed for some of those COAs, the Motion as to the punitive damages claims also fails.


For COA 5, Plaintiff adequately identified the sum at issue as her share of profits from WRG. (Complaint ¶ 30.) That she has claimed here to need an accounting to identify the exact sum does not defeat the claim for summary adjudication purposes. 


For COAs 7 and 8, the remedies requested may be subsumed in other claims, but the Motion has not demonstrated that the requests for such remedies are improper here. And although some courts have stated that unjust enrichment is not a separate cause of action, others have taken a contrary view. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593; Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 43-44 ["The seller in this matter pleaded and proved a cause of action based on a theory of unjust enrichment."].)  For COA 9, Plaintiff identified the controversy to be adjudicated here as the parties’ respective rights and interest in the partnership.  (Complaint, ¶ 41.) The Motion fails to show why that is not a viable COA here.


As Plaintiff has presented evidence sufficient to show Hatti’s direct involvement in the alleged partnership, the Motion as to Hatti personally also fails here. MPs have also failed to show here that the claims at issue are necessarily derivative claims.


The alternative Motion for Summary Adjudication is therefore also DENIED


The Evidentiary Objections presented with the reply papers are OVERRULED.  The two “motions to strike” contained therein are DENIED.  Although the Complaint serves as the “outer measure of materiality” in an MSJ (see Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493), the Opposition presented here, along with the supporting declarations, does not clearly deviate from or contradict the Complaint. No other valid basis for striking the declarations at issue has been shown.


Counsel for MPs is to give notice of this ruling.