Judge: John C. Gastelum, Case: 18-01037445, Date: 2022-08-23 Tentative Ruling
Jones v. Soderling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendant, Tieback Holdings, LLC (“Tieback”) moves for summary judgment in their favor and against plaintiffs Kimberly Moffatt Jones (“Ms. Jones”) and 150 Newport Center Drive LLC (“150 NCD”) (collectively, “Plaintiffs”), or alternatively, for summary adjudication, as to the 1st, 2nd, 3rd, 4th, 5th, and 6th causes of action alleged in the First Amended Complaint (“FAC”). The Motion is DENIED in its entirety.
Deficiencies in Notice of Motion
To move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498 [citing Code Civ. Proc. § 1010] (“Homestead”).) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead, supra, 179 Cal. App. 3d at p. 498.) A party does not waive any requirement of notice for a subissue that was not set forth in the notice by responding to the argument. (Homestead, supra, 179 Cal. App. 3d at p. 498.)
Here, there are several arguments made by Tieback which are not raised as an issue in the notice of motion.
Tieback’s Memorandum of Points and Authorities argues that it is “independently entitled to summary judgment, or summary adjudication, as to Plaintiffs’ first six causes of action because Plaintiffs, who were at all times represented by counsel during the alleged misrepresentations, refused to disclose their discussions with counsel whom they relied upon in taking the actions alleged.” (Motion, 6:14-17.)
Tieback’s Memorandum of Points and Authorities additionally argues that “Plaintiffs’ first six causes of action further fail because the evidence confirms that a conspiracy never existed as alleged,” and that “[b]ecause each of the first six fraud-based causes of action against Moving Defendants are predicated entirely on a non-existent conspiracy, each of the Moving Defendants is entitled to summary judgment on each of these causes of action as a matter of law.” (Motion, 6:25-26, 7:6-8.) Similarly, the SSUMF includes an Eighth Issue, which is not included as part of the notice of motion.
Neither of these arguments nor the Eighth Issue set forth in the SSUMF are set forth in the notice of motion as an issue for adjudication; thus, the Court declines to consider or adjudicate these issues.
Tieback’s Requests for Judicial Notice
Tieback does not specify in writing the part of the court file sought to be judicially noticed as Tieback does not refer or identify them by their ROA number. Plaintiffs do not oppose the requests. The Court GRANTS Tieback’s three requests for judicial notice and takes judicial notice of the existence of the documents in the court files pursuant to Evidence Code section 452(d).
However, although the Court may take judicial notice of the existence of the documents in the court files, the Court does not take judicial notice of the truth of the facts asserted in such documents. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1265-1266.) “[W]hile courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) “Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Ibid.)
As a result, even if there are facts asserted within the records referenced in the requests for judicial notice that might cure evidentiary gaps in the motion, Tieback cannot rely upon them to satisfy its burden of production on a motion for summary judgment. (See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1266 [noting that City could not rely on facts asserted in court records filed by the County in connection with the County’s motion for summary judgment to satisfy the City’s burden of production in its motion for summary judgment].)
Tieback’s Separate Statement of Undisputed Material Facts
“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 sufficient ground for denying the motion.” (Code Civ. Proc. § 437c(b)(1).)
Here, Plaintiffs correctly note the Memorandum of Points and Authorities inaccurately cites to Tieback’s Separate Statement of Undisputed Material Facts (“SSUMF”). For example, the Memorandum of Points and Authorities cites to SS#1, SS#2, SS#3 for certain facts, but those facts do not match what is stated as SSUMF Nos. 1 through 3.
It appears Tieback is incorporating the Soderling Defendants’ Separate Statement of Issues as part of its motion, and the Memorandum of Points and Authorities does not cite to Tieback’s own SSUMF, rendering it confusing and difficult to ascertain what SSUMF supports the factual assertions in the Memorandum of Points and Authorities, and whether those factual assertions are included in the SSUMF.
Moreover, the citations to evidence to support facts asserted in Tieback’s SSUMF include citations to the Declaration of Aaron McKown, and exhibits (i.e., SSUMF, Nos. 14-26), the Declaration of Ronald Soderling in support of Motion for Undertaking (i.e., SSUMF No. 26), the Declaration of Tod Ridgeway (i.e., SSUMF Nos. 26-30). However, none of these declarations are in evidence, and it is unclear whether Tieback is referencing declarations for which Tieback requested judicial notice. To the extent that Tieback is citing to declarations for which it sought judicial notice, Tieback does not properly cite to where the referenced declaration is located, nor are the contents of declarations sufficient to meet Tieback’s burden of production. This involves material facts set forth as to Issue Nos. 2 through 7.
There are also references to Ex. A of a Request for Judicial Notice (i.e., SSUMF Nos. 26-30, 44, 64, 82, 102, 123, 124); however, Tieback’s requests for judicial notice do not designate exhibits by letter, but by numbers such that it is unclear what request for judicial notice is being cited.
Based on the foregoing, each of the material facts stated in the SSUMF is not followed by proper reference to the supporting evidence, and under Code of Civil Procedure section 437c(b)(1), this deficiency may, in the court’s discretion, constitute sufficient ground for denying the motion.” (Code Civ. Proc. § 437c(b)(1).) Given the severity of deficiencies and Tieback’s improper reliance on court records consisting of declarations filed by the Soderling Defendants in support of their own motion for summary judgment and/or summary adjudication in an attempt to cure evidentiary gaps which is not sufficient to satisfy Tieback’s burden of production, the Court DENIES the motion for summary adjudication as to Issue Nos. 2 through 7.
Motion for Summary Judgment (Issue No. 1)
A cause of action has no merit if either (1) one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded; or (2) a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc. § 437c(o).)
Here, it is unclear what Tieback is arguing. To the extent that Tieback is attempting to argue some affirmative defense as precluding liability for the First through Sixth Causes of Action for fraud that is asserted against it, Tieback fails to properly notice that affirmative defense.
If Tieback is arguing that Plaintiffs cannot establish one or more of the elements of fraud, Tieback does not identify what element is at issue.
Tieback appears to argue the alleged representations made by Mr. Lutton and upon which the FAC is based, were not made as a duly authorized agent of Tieback made within the scope and course of his agency and employment. However, that is not the issue set forth in the notice of motion, and no authority is cited to support that this purported material fact entitles Tieback to judgment. Nor does Tieback cite to any authority supporting that, or explaining how, transferring its interest in the Property to NCAA, and having no communications with Plaintiffs absolves it of the alleged fraudulent representations.
Based on the foregoing, Tieback fails to meet its initial burden to show either that one or more elements of fraud cannot be established or that there is a complete defense. 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.) The party moving for summary judgment also “bears an initial burden of production to make a prima facie showing of the nonexistence of any trial issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Id. at p. 850.)
Even assuming Tieback had met its initial burden, there is a triable issue of fact as to whether Tieback had any interest in the purchase or development of the Property after the acquisition of the right to purchase the Property as Tieback was a member of NCAA and obtained an interest in NCAA immediately upon NCAA’s formation, and Mr. Lutton’s authority derived from his position as a manager at Tieback. (SSUMF, 11; Plaintiffs’ Separate Statement (“PSS”), 11; Declaration of Richard McCay, ¶¶ 2-10, 15-16; Ex. B to Declaration of Richard McCay, Second Amendment to the NCAA Operating Agreement; Ex. 9 to Opposition, Deposition Transcript of Ridgeway Development Co., Ltd. PMQ, 98:3-16.)
Tieback was also in existence at the time of the alleged misrepresentations and when NCAA was formed, as Tieback was formed on June 17, 2013, and remains an authorized and existing LLC in the State of California, and Mr. Lutton owed a 50% membership interest in Tieback. (Declaration of Richard McCay, ¶¶ 8, 10) Mr. Soderling formed NCAA on November 18, 2013. (Declaration of Richard McCay, ¶ 13.) Any doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)
First and Second Causes of Action (Issue Nos. 2 and 3)
Tieback fails to establish that Plaintiffs’ review of a written proposal and retention of an attorney to represent 150 NCD in its negotiations with NCAA means that Plaintiffs did not rely on representations made by Mr. Lutton at the Red O Restaurant as a matter of law. Tieback fails to meet its initial burden as to Issue Nos. 2 and 3.
“In establishing the reliance element of a cause of action for fraud, it is settled that the alleged fraud need not be the sole cause of the party’s reliance. Instead, reliance may be established on the basis of circumstantial evidence showing the alleged fraudulent misrepresentation or concealment substantially influenced the party’s choice, even though other influences may have operated as well. [Citations.]” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 170, emphasis in original.)
Third and Fourth Causes of Action (Issue Nos. 4 and 5)
Tieback contends that “[t]he undisputed evidence confirms, however, that the height limitation had nothing to do with NCAA’s decision to forego a hotel,” and as such, that “Plaintiffs [sic] Third and Fourth Causes of Action also fail as a matter of law.” (Motion, 5:20-26.) This is not the issue set forth in the notice of motion as to either the Third or Fourth Causes of Action. Thus, the Court declines to consider or adjudicate this issue.
Additionally, that the height limitation purportedly had nothing to do with NCAA’s decision to forego a hotel does not show or support that 150 NCD did not rely on representations made by Tieback. In turn, Tieback fails to address Issue Nos. 4 and 5 which assert that Ms. Jones, as the corporate designee for 150 NCD, admitted that 150 NCD did not rely on the representations allegedly made, and does not otherwise address the issues set forth in the notice of motion. Thus, Tieback fails to meet its initial burden as to Issue Nos. 4 and 5.
Fifth and Sixth Causes of Action (Issue Nos. 6 and 7)
As Tieback provides, Plaintiffs’ Fifth and Sixth Causes of Action allege that Plaintiffs were fraudulently or negligently induced into agreeing to a $100,000 draw down on NCAA’s line of credit based on the alleged failure to disclose two material facts: (1) that the Planning Commission had not requested adjustments to the architectural design of the project; and (2) Mr. Soderling’s decision to withdraw NCAA’s application. (Motion, 6:1-5.) Tieback then argues that “[t]he undisputed evidence, . . . , confirms that neither omission existed.” (Motion, 6:5-6.) This is not an issue that is raised in the notice of motion; thus, it is not properly set forth for adjudication, and the Court declines to consider or adjudicate this issue.
Tieback also argues that Plaintiff agreed to a $100,000 draw down on NCAA’s line of credit based on her personal observations at the Planning Commission hearing and the optimism she felt after the meeting, but fails to show that Ms. Jones’ own observations at the meeting somehow establishes that she did not rely on the alleged misrepresentations. The motion is denied as to Issue Nos. 6 and 7 for the same reason set forth above for Issue Nos. 2 and 3.
Plaintiffs to give notice.