Judge: Glenda Sanders, Case: JCCP5140, Date: 2022-08-19 Tentative Ruling
1) Omnibus Motion (re: 11/15/21 Referee recommendation) - Continued to September 2, 2022 per the parties’ request.
Regarding the various other pending hearings re discovery recommendations, the parties are ordered to inform the court, no later than September 2, 2022, which (if any) of the Referee’s Recommendations, did not set forth the Referee’s Findings.
2) Motion for Summary Judgment and/or Adjudication (Plaintiffs)
3) Motion for Summary Judgment and/or Adjudication (Baldwin & Bone) on the Statute of Limitations (Cont. from 8/5/22)
4) Motion for Summary Judgment and/or Adjudication (Baldwin & Bone) on the Statute of limitations. (Cont. from 8/5/22)
Re 2: Plaintiff’s Motion for Summary Adjudication (Essentially on the Cancellation Issue.)
The motion of Nominal HCR Moorpark Investors, LLC (“HCR”) and Faith Devine (together, “Plaintiffs”) for summary judgment Against All Defendants and Cross-Complainants, is denied.
As a preliminary matter, the court notes that, while the motion is styled “motion for summary judgment,” the notice states that it is, in the alternative, a motion for summary adjudication.
By way of this motion, Plaintiff’s seek summary adjudication as to all cross-complainants’/defendants’ claims and affirmative defenses that the HCR Judgment is void as a matter of law because HCR did not exist as a legal entity when the judgment was entered. Thus, they seek adjudication of:
· The First Cause of Action set forth in the Cross-Complaint filed by Baldwin in the HCR Action;
· The First Cause of Action set forth in the Cross-Complaint filed by Baldwin in the Devine Action;
· The First Cause of Action set forth in the Cross-Complaint to Set Aside Void Judgment filed by OVSD in the Devine Action;
· The First Cause of Action set forth in the Cross-Complaint to Set Aside Void Judgment filed by OVSD in the HCR Action
· The First Cause of Action in the Complaint filed by Ronald Therrien in the Therrien Action;
· Baldwin’s Second Affirmative Defense (Void Judgment) in both the HCR and Devine Actions
· OVSD’s Twenty-First Affirmative Defense (Judgment Invalid) in both the HCR and Devine Actions
· Therrien (in the HCR Action) and Therrien, Cath, LLC, KK3RM, LLC, Noble Court, LP and RMJB, Inc.’s (collectively, the “Therrien Entities”) (in the Devine Action) First Affirmative Defense (Void Judgment)
· Moller’s Twentieth Affirmative Defense (Void and Unenforceable Underlying Judgment) in both the HCR and Devine Actions
Legal Standard:
A cross-defendant moving for summary judgment satisfies his or her initial burden by showing 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).) The scope of this burden is determined by the allegations of the cross-complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381 382 (pleadings serve as the outer measure of materiality in a summary judgment motion)). Once a cross-defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
The standard where a plaintiff moves for summary adjudication of an affirmative defense has been articulated as follows:
“When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion “only if it completely disposes” of the defense. (Code Civ. Proc., § 437c, subd. (f)(1), italics added.) The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. [citations]
If the plaintiff does not make this showing, “ ‘it is unnecessary to examine the [defendant's] opposing evidence and the motion must be denied.’ ” [citations] “ ‘However, if the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff's] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue.’ ” [citations]
(See's Candy Shops, Inc. v. Superior Ct. (2012) 210 Cal.App.4th 889, 899–900).
The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850).
Material Facts
Plaintiffs provide seven substantially similar material facts in support of each issue listed in their separate statement.
No Jurisdiction Over Ronald Therrien
The motion for summary adjudication as to Therrien’s Complaint and affirmative defenses is denied for lack of jurisdiction. The parties have previously informed the court that Therrien is deceased; and he does not appear to have a representative appointed in this action. The court’s jurisdiction to enter judgment is lost upon a defendant’s death. Herring v. Peterson (1981) 116 Cal.App.3d 608, 612 (jurisdiction lost upon defendant’s death); Pham v. Wagner Litho Machinery Co. (1985) 172 Cal.App.3d 966, 973 (counsel’s authority does not survive client’s death).
No opposition was filed on Mr. Therrien’s behalf, as his prior counsel now only purports to represent the Therrien Entities. For these reasons, the court cannot grant summary adjudication as to Therrien’s affirmative defenses or his complaint in the related Therrien Action. The court notes that the Therrien action is not part of the JCCP.
Failure to Meet Initial Burden
As the Therrien Entities point out, they are not mentioned in the Separate Statement. This appears to be due to a typographical error, as the Therrien Entities are clearly included in the Notice and Memorandum. Instead, the Separate Statement lists issues that name only Therrien, the individual, while omitting the Therrien Entities.
CRC 3.1350(d)(1) requires the Separate Statement to separately identify “each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion . . .” The Separate Statement should have included a heading for the Therrien Entities’ affirmative defenses. While the court has discretion to overlook defects in the separate statement, it would not be appropriate to do so here, where there is nothing in the Separate Statement directed at the Therrien Entities who have therefore been deprived of the opportunity to respond to the allegedly undisputed material facts regarding their affirmative defenses.
In support of their motion as to all the parties, Plaintiffs also rely on numerous facts that are not included in the Separate Statement. For example, none of the information about Mr. Rosin’s state of mind when he cancelled the subject entity is included in the Separate Statement; as to this issue, the Separate Statement only includes the facts that the entity was cancelled and that the certificate of correction was subsequently filed.
“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251–52 (emphasis added)).
As the Baldwin/Bone Parties point out, Plaintiffs basically only included the dates of various events in their separate statement and then rely on numerous additional facts which are not included in the Separate Statement. This put the opposing parties at a disadvantage in having to discern which were the supposedly material facts.
Also, the moving papers purport to incorporate Plaintiffs’ opposition to the 2018 summary judgment motions by the Baldwin/Bone Parties. There are entire sections of the memorandum that appear to have been cut and pasted from that opposition because it contains incongruous statements such as “the Motion is devoid of any evidence whatsoever…,” even though Plaintiffs are now the moving parties. (See. e.g., Memo. at 16:22-23). The memorandum even at one point cites to evidence filed by the Baldwin/Bone Parties in support of their 2018 summary judgment motions. (See Memo at 13:14-16, citing to “Baldwin’s RFJN Exhibit 1”).
All the evidence relied on must be set forth in the separate statement. It is not enough to cross-refer to other sources where such evidence may be located. (See Artiglio v. General Elec. Co. (1998) 61 Cal.App.4th 830, 841-842 (Opposing Party's Separate Statement stated: “See evidence previously produced in opposition to earlier motion for summary judgment”); Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916, fn. 3—facts stated elsewhere need not be considered by court).
Finally, and of greater concern, two of the material “facts” included in the Separate Statement (UFs 6 and 7), are actually Plaintiffs’ assertions that the opposing parties “lack sufficient prima facie evidence to establish . . . that [opposing parties] were substantially and adversely affected by the correction” and that opposing parties “lack sufficient evidence to establish the Certificate of Correction does not date back to the date of filing of the Certificate of Cancellation” are unsupported by any evidence.
A mere statement as to the opposing party’s absence of evidence is insufficient to meet a moving party's initial burden. The moving party must provide evidence (such as discovery responses) to shift the burden when arguing that the opposing party has no evidence and cannot reasonably obtain the needed evidence. (See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Bayramoglu v. Nationstar Mortg. LLC (2020) 51 Cal.App.5th 726, 733-734).
Plaintiffs have not met this burden and so the motion is denied in its entirety.
Plaintiffs’ request for judicial notice of Exhibits 13 through 16 is granted. The court declines to take judicial notice of Exhibits 17 and 18 as they are not necessary for disposition of this motion. The court does not rule on the Baldwin/Bone Parties’ evidentiary objections as they are not material to the disposition of this motion.