Judge: David A. Rosen, Case: 19GDCV00281, Date: 2023-01-13 Tentative Ruling
Case Number: 19GDCV00281 Hearing Date: January 13, 2023 Dept: E
Hearing Date: 01/13/2023 – 2:00pm
Case No: 19GDCV00281
Trial Date: 01/23/2023
Case Name: SO MOON KIM v. CHUNG KYUNG HEE, et al.
CROSS
DEFENDANT/PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION ON THE 2D
AMENDED CROSS-COMPLAINT
[On the Caption of: (1) the
notice of motion and the (2) memorandum of points and authorities, moving party
improperly titles it as the Cross-Complainant’s motion. However, the moving
party is the Cross-Defendant/Plaintiff.]
Moving Party: Cross-Defendant/Plaintiff, So Moon Kim
Responding Party: No Opposition submitted
Proof of service timely filed (CRC 3.1300(c)): Ok
Correct Address (CCP §§ 1013, 1013(a)): Ok
Moving Papers: Notice of motion; Memo of points and
authorities; separate statement; Wilson H. Park Decl.; Clark Anthony Braunstein
Decl./Exhibits (380 pages); Clark Anthony Braunstein Decl./Exhibits (3 pages);
Elizabeth Wells Decl./Exhibits; Appendix of Exhibits Clark Anthony Braunstein;
Byung Hi Kim Decl.; Michael J. Jaurigue Decl./Exhibits; Bona Kim Lee Decl.;
Proof of Service.
75/80 Days
Under 437c(2), notice of the motion and supporting
papers shall be served on all other parties to the action at least 75 days
before the time appointed for hearing. If the notice is served by mail, the
required 75-day period of notice shall be increased by 5 days if the place of
address is within the State of California. If the notice is served by facsimile
transmission, express mail, or another method of delivery providing for
overnight delivery, the required 75-day period of notice shall be increased by
two court days. (CCP §437c(a)(2).)
Here, 75 days before the instant hearing is Sunday,
October 30, 2022. If served by email, 2 court days must be added, so the motion
would have to be served by email on Thursday, October 27, 2022. Here, the
motion was served by email on October 27, 2022 and is thus timely.
Further, the proof of service notes that the motion
and accompanying papers was also served by personal service on October 28,
2022.
This motion is thus timely.
30 Days
The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion shall not extend the time within which a
party must otherwise file a responsive pleading. (CCP §437c(a)(3).)
Here, the instant
hearing is set for 01/13/2023. The trial is scheduled for 1/23/2023. However, on
10/24/2022, this Court granted Cross-Defendant/Plaintiff’s unopposed ex parte
application to have this motion for summary judgment heard within 30 days of
trial.
RELIEF REQUESTED
Cross-Defendant/Plaintiff Kim moves the Court for a motion for summary
judgment pursuant to CCP §437c on the grounds that there is no triable issue of
material fact and moving party is entitled to judgment as a matter of law. [Although not explicitly stated, Cross-Defendant
Kim is clearly moving for summary judgment as to Cross-Complainants’ Second
Amended Cross-Complaint (SACC) based on the memorandum submitted.]
In the alternative, Kim moves the Court for an order
granting summary adjudication pursuant to CCP §437c(f) as to Cross-Complainants’
first, second, and third causes of action and claim for punitive damages on the
grounds that there is no merit to Cross-Complainants’ causes of action, there
is no triable issue as to any material fact, and Kim is entitled to summary
adjudication on these issues as a matter of law.
Movant lists the following issues for the Motion for
summary adjudication:
Issue 1.
Cross-Complainants’ First Cause of Action for Breach of Contract is barred by
the litigation Privilege.
Issue 2.
Cross-Complainants’ Second Cause of Action for Fraud is barred by the
litigation Privilege.
Issue 3.
Cross-Complainants’ Third Cause of Action for Fraud is barred by the litigation
Privilege.
Issue 4.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit as
no triable issue of material fact exists that Kim did not agree to repay any
expenses to Cross-Complainants, agree to transfer ownership to
Cross-Complainants, or not to demand the return of his artwork from
Cross-Complainants.
Issue 5.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit as
no triable issue of material fact exists that any of the purported oral
agreements alleged in the Cross-Complaint are barred by the statue of Frauds.
Issue 6.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit as
no triable issue of material fact exists that Kim breached any written
agreement in the Cross-Complaint.
Issue 7.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit as
no triable issue of material fact exists that Kim breached any oral agreement
alleged in the Cross-Complaint.
Issue 8.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit as
no triable issue of material fact exists that Kim breach of any written
agreement caused any damages Cross-Complainants.
Issue 9.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit as
no triable issue of material fact exists that Kim breach of any oral agreement
caused any damages Cross-Complainants.
Issue 10.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit
since the written agreement alleged in the Cross-Complaint is Unconscionable
and no triable issue of material fact exist.
Issue 11.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit
since the oral agreements alleged in the Cross-Complaint are Unconscionable and
no triable issue of material fact exist.
Issue 12.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit,
since the term provision of the written agreement is unconscionable, the
agreement becomes voidable at will by either party.
Issue 13.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit
since the written agreement alleged in the Cross-Complaint is a result of undue
influence, and no triable issue of material fact exist.
Issue 14.
Cross-Complainants’ First Cause of Action for Breach of Contract lacks merit
since the oral agreements alleged in the Cross-Complaint are undue influence,
and no triable issue of material fact exist.
Issue 15.
Cross-Complainants’ Second Cause of Action for Fraud lacks merit because Cross Complainants
cannot prove the critical element of Kim knowing misrepresented any facts to
Cross-Complainants, since there is no triable issue of material fact to support
this claim.
Issue 16.
Cross-Complainants’ Third Cause of Action for Fraud lacks merit because Cross
Complainants Cannot prove the critical element of Kim knowingly concealed any
facts to Cross-Complainants., since there is no triable issue of material fact
to support this claim.
Issue 17.
Cross-Complainants’ Second Cause of Action for Fraud lacks merit because Cross
Complainants Cannot prove the critical element of Intent, since there is no
triable issue of material fact to support this claim.
Issue 18.
Cross-Complainants’ Third Cause of Action for Fraud lacks merit because Cross
Complainants Cannot prove the critical element of Intent, since there is no
triable issue of material fact to support this claim.
Issue 19.
Cross-Complainants’ Second Cause of Action for Fraud lacks merit because Cross
Complainants Cannot prove the critical element that Cross-Complainants
Justifiably relied on any statement made by Kim, since there is no triable
issue of material fact to support this claim.
Issue 20.
Cross-Complainants’ Third Cause of Action for Fraud lacks merit because Cross
Complainants Cannot prove the critical element that Cross-Complainants
Justifiably relied on any statement made by Kim, since there is no triable
issue of material fact to support this claim.
Issue 21.
Cross-Complainants’ Second Cause of Action for Fraud lacks merit because Cross
Complainants Cannot prove the critical element that Cross-Complainants suffered
any damages, since there is no triable issue of material fact to support this
claim.
Issue 22.
Cross-Complainants’ Third Cause of Action for Fraud lacks merit because Cross
Complainants Cannot prove the critical element that Cross-Complainants suffered
any damages, since there is no triable issue of material fact to support this
claim.
Issue 23.
Cross-Complainants’ Second Cause of Action for Fraud lacks merit because it is
a mere restatement of the breach of contract claim.
Issue 24.
Cross-Complainants’ Third Cause of Action for Fraud lacks merit because it is a
mere restatement of the breach of contract claim.
Issue 25.
Cross-Complainants’ claim for punitive damages lacks merit because it is not
supported by admissible evidence and barred as a matter of law.
BACKGROUND
Plaintiff, So Moon Kim, filed a First Amended Complaint on 03/27/2019
alleging the following causes of action: (1) Declaratory Relief, (2) Breach of
Trust Arising from Consignment of Fine Art, (3) Rescission of Contract, (4)
Conversion, (5) Elder Abuse, (6) Intentional Misrepresentation, (7) Negligent
Misrepresentation, (8) Claim and Delivery.
On 1/24/2020, Cross-Complainants/Defendants, Kyung Hee
Choung and Ephatha Art Gallery filed a Second Amended Cross-Complaint alleging
the following causes of action: (1) Breach of Contract, (2) Fraud – Intentional
Misrepresentation, and (3) Fraud – Promise Made Without Intent to Perform.
LEGAL STANDARD
The function of a
motion for summary judgment or adjudication is to allow a determination as to
whether an opposing party cannot show evidentiary support for a pleading or
claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues; the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.”
(Juge v. County of Sacramento (1993)
12 Cal.App.4th 59, 67, citing FPI
Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)
Code of Civil Procedure section
437c, subdivision (a) provides that “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.” The motion shall be
granted if all the papers submitted 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. (Code Civ. Proc., § 437c(c).) In determining if the papers show
that there is no triable issue as to any material fact, the court shall
consider all of the evidence set forth in the papers, except the evidence to
which objections have been made and sustained by the court, and all inferences
reasonably deducible from the evidence, except summary judgment shall not be
granted by the court based on inferences reasonably deducible from the evidence
if contradicted by other inferences or evidence that raise a triable issue as
to any material fact. (Id.)
As to each claim as
framed by the complaint, the defendant moving for summary judgment must satisfy
the initial burden of proof by presenting facts to negate an essential element,
or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.)
“A defendant
or cross-defendant has met his or her burden of showing that a cause of action
has no merit if the party has shown that one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is
a complete defense to the cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the plaintiff or
cross-complainant to show that a triable issue of one or more material facts
exists as to the cause of action or a defense thereto. The plaintiff or
cross-complainant shall not rely upon the allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material
fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).) 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.)
A motion for summary adjudication may be
made by itself or as an alternative to a motion for summary judgment and shall
proceed in all procedural respects as a motion for summary judgment. (CCP
§437c(f)(2).)
ANALYSIS
“If
made in the alternative, a motion for summary adjudication may make reference
to and depend on the same evidence submitted in support of the summary judgment
motion. 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 Court, Rule 3.1350(b).)
Further, as explained in Schmidlin v. City of Palo
Alto:
A motion
for summary adjudication tenders only those issues or causes of action
specified in the notice of motion, and may only be granted as to the matters
thus specified. The movant must “state[ ] specifically in the notice of motion
and ... repeat[ ], verbatim, in the separate statement of undisputed material
facts,” “the specific cause of action, affirmative defense, claims for damages,
or issues of duty” as to which summary adjudication is sought. (Former Cal.
Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).)
The motion must be denied if the movant fails to establish an entitlement to
summary adjudication of the matters thus specified; the court cannot summarily
adjudicate other issues or claims, even if a basis to do so appears from the
papers. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d
1542, 1546, 235 Cal.Rptr. 106 [“‘If a party desires adjudication of
particular issues or subissues, that party must make its intentions clear in
the motion....’ [Citation.] There is a sound reason for this rule: ‘... the
opposing party may have decided to raise only one triable issue of fact in
order to defeat the motion, without intending to concede the other issues. It
would be unfair to grant a summary adjudication order unless the opposing party
was on notice that an issue-by-issue adjudication might be ordered if summary
judgment was denied’ ”].)
Here defendants'
separate statement reflects no attempt to comply with this requirement. That
alone precludes a holding that the trial court erred in denying the motion.
(Schmidlin v.
City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)
Here, Cross-Defendant/Plaintiff’s separate
statement does not comply with the requirements of California Rules of Court
Rule 3.1350(b).
TENTATIVE RULING
Cross-Defendant/Plaintiff’s
motion for summary judgment, or in the alternative, summary adjudication, as to
Cross-Complainants’ Second Amended Cross-Complaint is DENIED. The issues in the
notice of the motion are not repeated verbatim in the separate statement.
Further, Movant/Cross-Defendant states there are 25 issues in the Separate
Statement, but these 25 issues are not clearly expressed in the Separate
Statement, nor are any of the facts claimed by Movant to be undisputed linked
to any of the issues Movant has listed in the Motion. In short, Movant’s failure to comply with
C.R.C. 3.1350(b) presents the Court with a lengthy series of allegedly
undisputed material facts, along with evidence that allegedly supports those
claimed facts, in a random fashion. No
nexus between the facts listed in the Separate Statement and the elements of
cross-complainant’s causes of action is shown. Movant never sets forth in the
moving papers nor the Separate Statement, how or whether these facts, if found
to be undisputed, foreclose the existence of any or all triable issues raised
by the operative cross-complaint. Thus,
of course, the burden to show the existence of triable issues of material fact
was never shifted to defendants/cross-complainants.