Judge: Gary Y. Tanaka, Case: BC614508, Date: 2022-10-24 Tentative Ruling

Case Number: BC614508    Hearing Date: October 24, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

Honorable Gary Y. Tanaka                                                                                                      Monday, October 24, 2022

Department B                                                                                                                                                Calendar No. 8

 


 


PROCEEDINGS

 

Douglas Drewry, et al. v. Hugh Douglas Bek, et al.

BC614508

  1. Hugh Douglas Bek and Garrett Bek’s Motion for Summary Judgment, or, in the Alternative Summary Adjudication     

         

    TENTATIVE RULING

            

                Hugh Douglas Bek and Garrett Bek’s Motion for Summary Judgment, or, in the Alternative Summary Adjudication is granted.

     

                Background

     

                Plaintiffs filed the Complaint on March 22, 2016.  Plaintiffs’ operative Third Amended Complaint was filed on September 20, 2017.  Plaintiffs allege the following facts:  Defendant Hugh Douglas Bek promised his mother, decedent Barbara Bek Payne, that he would distribute the assets of her estate equally between himself and her grandchildren upon her death.  Defendant broke this promise by refusing to distribute any of the property to the grandchildren.  Both Defendants also improperly liquidated accounts belonging to decedent.  Plaintiffs allege the following causes of action: 1. Breach of Contract; 2. Financial Elder Abuse.

     

                Motion for Summary Judgment/Adjudication

     

                The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

     

                “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.”  CCP § 437c(p)(2).  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2).  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.)

     

                “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).

     

                “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).)

     

                Defendants move for summary judgment and/or summary adjudication as to the second cause of action for Financial Elder Abuse.  Defendant Garrett Bek is a named Defendant only on the second cause of action, and, therefore, his motion is a motion for summary judgment.  Defendant Hugh Douglas Bek is a named Defendant on both causes of action, and, thus, his motion is a motion for summary adjudication as to the second cause of action. The motion is made on the grounds that there are no triable issues of material fact because Plaintiffs cannot establish that Defendants breached any duty to decedent amounting to financial elder abuse, and that Plaintiffs cannot establish damages.  

     

                Defendants have met their burden to establish that one or more elements of the second cause of action cannot be established and/or that there is a complete defense to the causes of action.  Plaintiffs failed to file any written opposition to the motion.  In fact, Plaintiffs filed a “Response” to the motion essentially conceding that Plaintiffs have no evidence to support the second cause of action.  CCP § 437c(b)(3) states: “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed.  . . .  Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.”  Thus, Plaintiffs’ failure to file any written opposition or a separate statement of facts is a ground, in and of itself, in the Court’s discretion, to grant the motion.  At that point, when there are no triable issues as to any material facts, the Court’s determination to enter summary judgment or summary adjudication becomes a matter of formality.  (Cravens v. State Board of Education (1997) 52 Cal.App.4th 256, 258.)  

     

                Plaintiffs’ “Response” included a proposed request for dismissal of the second cause of action.  However, Plaintiffs may not dismiss an action to avoid entry of summary judgment or summary adjudication, where, as noted above, the action has proceeded to a determinative adjudicative stage.  (Cravens v. State Board of Equalization (1997) 52 Cal.App.4th 256-57.)  Thus, Plaintiffs cannot avoid a motion for summary judgment or summary adjudication by filing a last-minute request for dismissal without prejudice.

     

                Defendants submitted competent evidence to establish that Defendants did not commit financial elder abuse against decedent.  (Defendants’ Separate Statement of Facts and Supporting Evidence, 1-58.)  Plaintiffs did not meet their burden to submit competent evidence to show the existence of a triable issue of material fact as to the second cause of action.

     

                Therefore, Defendant Garrett Bek’s motion for summary judgment is granted and Defendant Hugh Douglas Bek’s motion for summary adjudication of the second cause of action is granted.

     

                Defendants are ordered to give notice of this ruling.