Judge Holly J. Fujie, Case Number: 23STCV00199, Date: 2025-02-05 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.

RESPONDING PARTY: Defendant/Cross-Complainant Edward Paul Humenik, as an individual and as Trustee of the Paul J. Humenik Trust Under Declaration of Trust Dated February 19, 2011 (“Humenik”)

This action arises out of a dispute concerning real property located at 529 Dartmouth Road, Burbank, California (the “Subject Property’). On January 5, 2023, Goodlaw filed the complaint (“Complaint”) alleging causes of action for: (1) breach of contract; (2) violation of Civil Code § 2943; (3) quiet title to real property; (4) injunctive relief; (5) specific performance; (6) conversion; (7) trespass to chattels; (8) claim and delivery; and (9) declaratory relief.

On March 8, 2023, Humenik filed a cross-complaint. The operative first amended cross-complaint (the “FAXC”) alleges cause of action for: (1) rescission of contract and (2) common count.

On October 25, 2024, Goodlaw filed the instant motion for summary judgment, or in the alternative, summary adjudication (the “Motion”). On January 10, 2025, Humenik filed an opposition to the Motion (the “Opposition”). On January 17, 2025, Goodlaw filed a reply (the “Reply”).

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”.

The court, however, may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Pursuant to Goodlaw’s request, the Court takes judicial notice of the following: (1) the Complaint filed on January 5, 2023 in this action; and (2) the FAXC filed on April 23, 2023 in this action.

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure (“CCP”), § 437c, subd. (c).)

The moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Id.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“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, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“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.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Goodlaw moves for summary judgment, or in the alternative, summary adjudication of both causes of action alleged in the FAXC.

Under Civil Code (“Civ. Code”) section 1689 subdivision (b)(1), a party to a contract may rescind the contract if the consent of the party rescinding was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party. (Civ. Code § 1689, subd. (b)(1).) “One seeking rescission on account of fraud must be actually deceived by misrepresentation of a material fact and the other party must have intended to deceive by a misrepresentation of such material fact. Further, the party seeking to rescind must rely upon the fraudulent representation to his injury and damage before he can have the contract rescinded.” (Contra Costa County Title Co. v. Waloff (1960) 184 Cal.App.2d 59, 65.)

The statute of limitations for an action for relief on the ground of fraud or mistake is three years, but “is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (CCP. § 338, subd. (d).) Alternatively, the statute of limitations for an “action based upon the rescission of a contract in writing” is four years. (CCP § 337, subd. (c).)

The Court of Appeal decision in Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57 is controlling here. In Vera, a home buyer brought an action against the seller asserting a cause of action for breach of contract based on the seller’s alleged failure to disclose material facts about the property. (Vera, supra, 66 Cal.App.5th at p. 57.) The Court of Appeal found that because the gravamen of the buyer’s breach of contract claim was fraud, the three-year statute of limitations for actions for relief on the ground of fraud applied as opposed to the statute of limitations for breach of a written contract. (Vera, supra, 66 Cal. App. 5th at pp. 64-67.) It is undisputed that Humenik’s claim for recission of contract is based on Goodlaw and others allegedly fraudulent misrepresentations as to the value of the Subject Property at the time of sale. (UMF Nos. 13, 15, 18, 21-23, 25.) Thus, although the relief sought is rescission of a contract, the ‘nature of the grievance’ is fraud; therefore, the three-year statute of limitations applies. (Vera, supra, (2021) 66 Cal. App. 5th at pp. 64-67; CCP. § 338, subd. (d).) Humenik testified that he discovered the true value of the property in June 2019. (UMF No. 23) As the FAXC was not filed until April 23, 2023, the claim for rescission of contract on account of fraud is barred by the statute of limitations. Thus, summary adjudication is GRANTED as to the first cause of action for recission of contract.

The elements of a common count cause of action are “(1) a statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 (citations omitted).) It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” (Utility Audit Co. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.) “A common count claim broadly applies wherever one person has received money which belongs to another, and which in ‘equity and good conscience,’ or in other words, in justice and right, should be returned.” (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809 (internal quotations and citations omitted).)

Goodlaw argues that Humenik fails to state a cause of action for common count because there was no agreement or understanding that Goodlaw would pay a fee to use Humenik’s storage space. (Mot. p. 14:26-28.) Goodlaw stored some of his personal belongings such as appliances and magazines in Humenik’s storage unit. (UMF No. 29.) No discussion or agreement was made regarding the terms of storage, including rent payment. (UMF Nos. 30-31.)

A claim for common count does not require an express agreement but rather is based on equitable principles. (Rubinstein, supra 49 Cal.App.5th at p. 810.) It is undisputed that Goodlaw utilized Humenik’s storage unit and did not pay for it. (UMF Nos. 29-31.) Humenik asserts that he is entitled to compensation of $151 per month from January 4, 2021 to the present for the use of the space. (FAXC ¶ 81.) Accordingly, a triable issue of material fact exists as to whether principles of equity require Goodlaw to compensate Humenik for the use of the storage space. Thus, summary adjudication is DENIED as to the second cause of action for common count.

The Motion for Summary Adjudication is GRANTED, in part. The Motion is GRANTED as to the first cause of action for recission of contract and DENIED as to the second cause of action for common count.

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