Judge Holly J. Fujie, Case 20STCV26356 2022-08-12 Tentative Ruling

RESPONDING PARTY: Defendants NBA Automotive, Inc., Rayan Nissani and Hooman Nissani (“Defendants”)[1]

This action arises out of an indemnitor/indemnitee relationship. Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of the NBA Indemnity Agreement; (2) specific performance of the NBA Indemnity Agreement; (3) breach of the R&H Indemnity Agreement; and (4) specific performance of the R&H Indemnity Agreement.

On October 6, 2021, Plaintiff filed a motion for summary adjudication (the “Motion”) as to Defendants’ liability and Plaintiff’s damages for breaches of the indemnity agreements at issue in the Complaint.

Defendants’ objection to the Declaration of Elena Kuzminova (“Kuzminova Decl.”) is OVERRULED. Defendants’ objections to the Declaration of Tonya Schnicker (“Schnicker Decl.”) are OVERRULED in their entirety.

Plaintiff’s objections to the Declarations of Hooman Nissani (collectively, the “Nissani Decls.”) numbers 1, 3-7, and 9-12 are OVERRULED. Objections numbers 2 and 8 are SUSTAINED. Plaintiff’s objections to the Declaration of Duncan J. McCreary (“McCreary Decl.”) are OVERRULED in their entirety.

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.) California Code of Civil Procedure (“CCP”) 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.)

A plaintiff moving for summary judgment or summary adjudication meets the burden of showing that there is no defense to a cause of action if the plaintiff has proved each element of the cause of action entitling them to judgment on that cause of action. (CCP § 437c, subd. (p)(1).) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of the opposing party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. 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.)

Defendants argue that the Motion should be denied because it does not comply with the notice requirements of California Rules of Court (“CRC”), rule 3.1350(b). Under CRC, rule 3.1350(b), 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. (CRC, r. 3.135(b).) Here, the Notice of Motion (the “Notice”) filed by Plaintiff states that it is seeking summary adjudication “as to Defendants’ liability and [Plaintiff’s] damages under the indemnity agreements; specifically, that Defendants be found liable for breach of the indemnity agreements for failures to: (1) indemnify [Plaintiff] for all known losses, costs and expenses it has incurred in connection with the bonds and (2) reimburse [Plaintiff] its damages in connection with the bonds.” In addition, the Separate Statement of Undisputed Material Facts (“Separate Statement”) filed with the Motion does not specify the causes of action or issues that each fact is being offered to prove. (See also CRC, r. 3.1350(d).)

The Court agrees that the Notice and Separate Statement do not comply with CRC, rule 3.1350 because neither identifies the causes of action for which Plaintiff seeks summary adjudication and the Separate Statement does not indicate which cause of action or issue each fact is being offered to prove. Because all the causes of action alleged in the Complaint implicate the indemnity agreements, Plaintiff’s failure to identify the specific causes of action for which it seeks summary adjudication—either in the Notice or Separate Statement—makes the Motion unclear and deprived Defendants of the opportunity to understand and respond. In addition, the Motion references three indemnity agreements, while the causes of action identified in the Complaint are in relation to two indemnity agreements. The Court has discretion to deny motions for summary judgment/adjudication for failure to comply with CRC, rule 3.1350. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.)

Moreover, the Court notes that Plaintiff has not submitted sufficient evidence to demonstrate its damages for Defendants’ alleged breaches. Plaintiff appears to seek damages which include attorney’s fees incurred in connection with this action, including fees incurred in the time between the filing of the Motion and the hearing. (See Reply Marutzky Decl. ¶ 10.) As a result, the amount of damages that Plaintiff seeks is not clear; furthermore, there is insufficient evidence presented to support the additional attorney’s fees claimed in the Reply. (See id.)

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Defendant R&H Automotive Group, Inc. is a suspended corporation and therefore cannot presently defend itself in this matter.