Judge Holly J. Fujie, Case Number: 20STCV33773, Date: 2023-08-09 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least 14 days before the hearing under California Code of Civil Procedure (“CCP”) section 437c, subdivision (b)(2).

This action arises out of a dispute over the management and control of a bar located in downtown Los Angeles. Salin’s operative fourth amended complaint (the “Salin 4AC”) alleges: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) intentional interference with prospective economic advantage; (4) defamation; (5) claim and delivery; (6) unfair competition; (7) declaratory relief; and (8) accounting.

On May 18, 2023, Salin filed a motion for summary adjudication (the “Motion”) of the seventh cause of action for declaratory relief in the Salin 4AC on the grounds that there are no triable issues of material fact regarding the claim.

Salin’s Request for Judicial Notice is GRANTED with respect to Exhibits A, B, and D as to the existence of the documents but not to the truth of the matters stated therein. (See Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400; Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1191-92.) Salin’s Request for Judicial Notice is DENIED with respect to Exhibit C.

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.) CCP section 437c, subdivision (c) requires the 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 its 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.) The opposition papers must include a separate statement that responds to each of the material facts that the moving party claims to be undisputed. (CCP § 437c, subd. (b)(3).) If the opposing party disputes a fact, then the opposing party must reference supporting evidence. (Id.)

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject. (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545.) The court may sustain a demurrer on the ground that the complaint fails to allege an actual or present controversy, or that it is not justiciable. (Id.)

Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed. (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59.) Thus, the remedy is to be used to advance preventive justice, to declare rather than execute rights. (Id.) In order to state a proper claim for declaratory relief, the plaintiff must assert “some recognized or cognizable legal theories” that are “related to subjects and requests for relief that are properly before the court.” (See Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 563.)

The Salin 4AC concerns the propriety of Salin’s removal as manager of Defendant Exposition Bar Group, LLC (“EBG”) and whether Salin remains a manager of EBG as the result of his allegedly improper expulsion. (Salin 4AC ¶ 175.)

In support of the Motion, Salin presents evidence that EBG’s Operating Agreement includes a provision that requires unanimous written consent of EBG’s members to remove a manager. (See Separate Statement of Undisputed Material Facts (“UMF”) 8.) The resolution purporting to remove Salin as a manager in June 2019 was signed by 19 EBG members, but was not signed by Al Almeida (“Almeida”), who was a both manager and member of EBG at the time. (See UMF 4-5, 9-10.)

The Motion’s evidence is limited to the issue of Salin’s removal as manager. The Motion argues that because Salin’s removal was improper, he remains a manager of EBG. As an initial matter, the Court observes EBG presented evidence in support of its motion for summary adjudication filed on February 24, 2023 (the “EBG MSA”) that Almeida was no longer a member of EBG when Salin was removed as manager. (See EBG MSA, Exhibit 4 at ¶ 8.) Further, the Court finds that the evidence does not set forth evidence to demonstrate that no other events have occurred to undermine Salin’s status as a manager of EBG since June 2019. The Court therefore DENIES the Motion.

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