Judge: Erick L. Larsh, Case: 30-2019-01077617-CU-CO-CJC, Date: 2022-11-02 Tentative Ruling
Defendants Happy Pregnancy Care & Medical Management (USA) Co., Ltd., Meilan Lin, Jiana Zhan, Joint Perfect, Inc., And Yi Qin’s Motion for Summary Adjudication
The court is inclined to grant the motion as to the 2nd cause of action for negligent misrepresentation and 3rd cause of action for negligence and deny the motion as to the 8th cause of action for conversion. (Code Civ. Proc., § 437c [authorizing summary judgment / adjudication].)
Defendants’ request for judicial notice is GRANTED as to plaintiff’s Second Amended Complaint. (Evid. Code, § 452, subd. (d)(1) [court records]; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1211 [on summary judgment, a party may rely on admissions of fact contained in the opposing party's pleadings as evidence].) The request is DENIED as to plaintiff’s deposition testimony.
2nd cause of action: negligent misrepresentation; 3rd cause of action: negligence.
Moving parties have met their initial burden of presenting evidence showing that plaintiff cannot establish an essential element of these claims, as they are time-barred. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Code Civ. Proc., § 335.1 [two-year statute of limitations for injury “caused by the wrongful act or neglect of another”]; 24 Hour Fitness, Inc. v. Superior Court, supra at 1211 [on summary judgment, a party may rely on admissions of fact contained in the opposing party's pleadings as evidence]; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 [“the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her”]; Moving Party Separate Statement, Fact Nos. 1, 2; Second Amended Complaint, ¶¶ 19-21 [alleging misrepresentations between November 2016 and January 2017], 34-40 [alleging negligent and substandard services in April 2017], 46 [alleging plaintiff was aware in May 2017 that the egg retrieval procedure was unsuccessful, which caused emotional distress]; action filed 6-18-19, more than two years later.)
As moving parties have met their initial burden on summary judgment, the burden shifts to plaintiff to present evidence sufficient to create a triable issue of material fact. Code Civ. Proc., § 437c, subd. (p)(2) [burden].) Plaintiff has not done so. Plaintiff only contends that judicial notice of the factual allegations in her Second Amended Complaint is insufficient. However, as indicated above, on summary judgment, a party may rely on factual allegations in an opposing party’s pleading as evidence. (24 Hour Fitness, Inc. v. Superior Court, supra at 1211.) Nor has plaintiff presented any evidence disputing these allegations so as to create a triable issue of material fact. (See Bahan v. Kurland (1979) 98 Cal.App.3d 808, 812 [“When the underlying facts pleaded and averred in declarations in opposition to a motion for summary judgment belie the pleaded conclusion, and indicate the existence of an important fact question, the mistaken conclusion on the part of a pleader should not preclude a trial of the issue on its merits”].)
3rd cause of action: conversion:
Moving parties have met not met their initial burden of presenting evidence showing that plaintiff cannot establish an essential element of this cause of action, i.e. a sum certain capable of identification. (Code Civ. Proc., § 437c, subd. (p)(2) [burden]; Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 452 [“Money can be the subject of an action for conversion if a specific sum capable of identification is involved”].)
Moving parties have not addressed plaintiff’s allegations that defendants converted the entire amount alleged, and are not entitled to retain any amount for expenses, due to fraud. (Second Amended Complaint, ¶¶ 121, 122; Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001 [where a party seeking summary judgment has not addressed all of the relevant allegations of the complaint and/or all theories of liability alleged, it is not entitled to summary judgment]; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942 [“motion for summary judgment should have been denied because it did not refute tenable pleaded theories”].)
Further, even if moving parties had met their initial burden, plaintiff has presented evidence sufficient to create a triable issue of material fact. (Wang Decl., ¶¶ 2, 3.)
Moving parties to give notice.