Judge David A. Rosen, Case 21PSCV01086 2023-05-05 Tentative Ruling

Judge: David A. Rosen, Case: 21PSCV01086, Date: 2023-05-05 Tentative Ruling

Case Number: 21PSCV01086 Hearing Date: May 5, 2023 Dept: E

Hearing Date: 05/05/2023 – 2:00pm

Case No: 21PSCV01086
Trial Date: 07/10/2023

Case Name: ERIC CHEN, a natural person and CINDY CHOU, a natural person v. JAMES WU, a natural person; US LIFE MANAGEMENT CORPORATION, a California Corporation; CHIHUANG WU, a natural person; PUHUI WU, a natural person; and DOES 1-100 inclusive

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION

Moving Party: Defendants, Chihuang Wu and Pihui Wu

Responding Party: Plaintiffs, Eric Chen and Cindy Chou

Proof of service timely filed (CRC 3.1300(c)): Ok

Correct Address (CCP §§ 1013, 1013(a)): Ok

Moving Papers: Notice of Motion; Memorandum; Separate Statement; Proposed Order; Evidence and Declarations;

Opposition: Opposition; Separate Statement; Proof of Service

Reply: Reply

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, the motion is timely.

RELIEF REQUESTED
Defendants, Chihuang Wu and Pihui Wu move pursuant to CCP §437c for summary judgment on all causes of action alleged against them by Plaintiffs as pleaded in the operative Complaint filed by Plaintiffs on December 30, 2021, or alternatively for summary adjudication.

BACKGROUND
Plaintiffs filed a Complaint on 12/30/2021. The Complaint stems from allegations by the Plaintiffs that Defendants backed out of a sale for property. The Complaint alleges four causes of action for – (1) Breach of Contract, (2) Specific Performance, (3) Breach of Fiduciary Duties, and (4) Fraud.

The Defendants moving here are Defendants Chihuang Wu and Pihui Wu. The first cause of action for breach of contract and the second cause of action for specific performance are the only two causes of action alleged against the moving Defendants.

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.)

Additionally, under California Rules of Court, Rule 3.1350(d) the separate statement of undisputed material facts in support of a motion must separately identify each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. (California Rules of Court, Rule 3.1350(d)(1)(A)-(B).)

Here, Defendants’ motion for summary judgment, or in the alternative summary adjudication, does not follow the procedural requirements for a motion for summary adjudication/judgment.

Defendants’ separate statement is separated into two sections, a section titled “Motion for Summary Judgment,” and a section titled “Motion for Summary Adjudication.” As to the Motion for Summary Judgment section, the separate statement does not identify each, or any cause of action on which Defendants are moving for summary judgment, nor does the separate statement break down which allegedly undisputed facts apply to which cause of action. Instead, Defendants lump 49 consecutive undisputed facts together without identifying a single cause of action.

Further, the motion itself identifies the affirmative defense of the statute of frauds. [“Other claims of unenforceability must be raised by affirmative defense, such as a claim a contract is barred by the statute of frauds…” (Ladd v. Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298, 1309, fn. 8.)] However, neither the Motion for Summary Judgment section nor the Motion for Summary Adjudication section in Defendants’ separate statement addresses this affirmative defense. Further, the section of Defendants’ separate statement titled Motion for Summary Adjudication, although it identifies two causes of action, is insufficient because it is too uncertain as to what issues it is attempting to raise.

Further, the Court notes that the Separate Statement filed by Plaintiffs continually refers to Chihuang Wu as Plaintiffs when in fact the Wus are Defendants. Further, Plaintiffs’ Separate Statement is unintelligible.

Plaintiff’s Request for Continuance per CCP §437c(h)

“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. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (CCP §437c(h).)

In Opposition, Plaintiffs make a timely request for a continuance of the hearing of this motion based on CCP §437c(h) because discovery is still ongoing, and the depositions of Defendants have not been completed.

TENTATIVE RULING
Defendants’ motion for summary judgment, or alternatively for summary adjudication is DENIED.

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) Here, the Court is not ruling on objections.