Judge: Gary Y. Tanaka, Case: YC071918, Date: 2022-10-03 Tentative Ruling
Case Number: YC071918 Hearing Date: October 3, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Monday, October 3, 2022
Department B Calendar No. 8
PROCEEDINGS
Bobby Gossai v. Ray Golbari, et al.
YC071918
Bobby Gossai’s Motion for Summary Judgment
TENTATIVE RULING
Bobby Gossai’s Motion for Summary Judgment is denied.
Background
Plaintiff filed his Complaint on July 11, 2017. Plaintiff’s operative Fourth Amended Complaint was filed on December 31, 2020. Plaintiff alleges the following facts. Plaintiff negotiated a real estate transaction for Defendants. Plaintiff and Defendants entered into a contract for compensation which is attached as Exhibit A-O to the Fourth Amended Complaint. To partially satisfy Defendants’ obligation to compensate Plaintiff, Defendants assigned two of their debts/accounts to Plaintiff for services rendered. Plaintiff contends that the assignments were worthless. Plaintiff was not able to collect on the assignments. Plaintiff alleges the following causes of action: 1. Breach of Written Contract; 2. Fraud – i. Promise without Intent to Perform; ii. Intentional Misrepresentation; iii. Negligent Misrepresentation; 3. Quantum Meruit.
The Court notes that Plaintiff violated the Court’s order sustaining the demurrer to the Third Amended Complaint which ordered Plaintiff to only set forth one cause of action for intentional fraud. Instead, while purportedly attempting to state one fraud cause of action, Plaintiff grouped together both intentional and negligent theories. Thus, the Court will treat the second cause of action as the cause of action for Fraud based on intentional false promise and intentional misrepresentation, the Court will deem the third cause of action as the cause of action for Negligent Misrepresentation, and the fourth cause of action for Quantum Meruit.
Objections
The Court declines to rule upon the parties’ objections as they were not material to the Court’s ruling in this case. CCP § 437c(q).
Motion for Summary Judgment
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).)
Plaintiff moves for summary judgment as to his Complaint. The motion for summary judgment must be denied.
Code Civ. Proc., § 437c(a)(2) states:
“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, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. 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.”
Here, the motion was served by regular mail on August 15, 2022, and filed on August 22, 2022. Thus, the motion was served by regular mail only 49 days before the hearing date, rather than 80 days (75, plus five for mailing). Plaintiff has not shown the existence of an agreement by the parties to shorten the time of the hearing date, nor the existence of an order by the Court allowing the motion to be heard on shortened notice. The court may not shorten the 75-day notice period without the parties’ consent. McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 116.
Code Civ. Proc., § 437c(b)(1) states: “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.” The Court further notes that Plaintiff failed to file and serve the mandatory separate statement as required by CCP § 437c(b)(1). This is a separate ground for denial, in the Court’s discretion, of the motion for summary judgment.
Therefore, Plaintiff’s motion for summary judgment is denied.
Defendant is ordered to give notice of this ruling.