Judge: Katherine Chilton, Case: 18STCV10154, Date: 2022-09-19 Tentative Ruling

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Case Number: 18STCV10154    Hearing Date: September 19, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR SUMMARY JUDGMENT  

MOVING PARTY:   Plaintiff Young Chow Dai

RESP. PARTY:         Defendant Anthony Ranieri  

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Young Chow Dai’s Motion for Summary Judgment is DENIED.

OPPOSITION:          Filed on 9/9/22                                                [   ] Late                      [   ] None

                                    Joinder filed 9/12/22                                       [   ] Late                      [   ] None

REPLY:                     None filed as of 9/15/22                                    [   ] Late                      [X] None

ANALYSIS:

I.                Background

On December 31, 2018, Plaintiff Young Chow Dai (“Plaintiff”) filed an action for breach of contract against Defendants Feldman & Rothstein, P.C. (“Feldman”), Anthony N. Ranieri, Esq. (“Ranieri”), Marsha S. Mao (“Mao”), Mauro Fiore Jr. (“Fiore”), and Krystale Rosal (“Rosal”) (collectively, “Defendants”). Plaintiff filed a First Amended Complaint on April 5, 2019.

On August 25, 2022, Plaintiff filed the instant Motion for Summary Judgment.  On August 30, 2022, Plaintiff filed two additional motions for summary judgment – one entitled Motion for Summary Judgement [sic] and another entitled “Second Motion for Summary Judgment and New Discovery of Defendants’ Non-excusable Neglect” and noticed them for the same date.  These second and third motions relate to Defendants’ failure to file a change of address form with the Court.  As these two motions do not relate to the merits of the case, the Court will not address them, but will address the first-filed motion (hereinafter “Motion”).

Defendant Ranieri filed an opposition on September 6, 2022 and Defendants Fiore and Rosal filed a Notice of Joinder on September 12, 2022. No reply brief was filed.

II.              Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law.  (Code Civ. Proc. § 437c(c).)  The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition.  (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.)  Thus, “the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.).  When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought.  (Code Civ. Proc., § 437c(p)(1).)  The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and the courts must construe the evidence in support of the opposing party, resolving any doubts in favor of the opposing party.  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639; Scalf, 128 Cal.App.4th at 1519; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden.  (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)  Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial.  (Code Civ. Proc. § 437c(p).)  The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)  Summary judgment must be granted “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.)

As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute.  (Code Civ. Proc., § 437c(f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)

III.            Discussion

Plaintiff argues that she is entitled to summary judgment on her causes of action because there are no disputed issues of fact.

As noted in his Opposition, Defendant Ranieri argues that the Motion is procedurally and substantively defective.  To wit:

(1)   Plaintiff failed to file the Motion prior to the motion cutoff date.

(2)   Plaintiff failed to comply with minimum notice under CCP 437.

(3)   Plaintiff’s Motion is based on an unfiled second amended complaint.

(4)   Plaintiff failed to file a separate statement of undisputed material facts

(5)   Plaintiff failed to file any supporting declarations or other evidence.

(6)   Plaintiff failed to cite any law.

(7)   Plaintiff seeks summary judgment against unserved defendants.

The Court finds as follows:

            Plaintiff failed to timely file the Motion.  The Court previously has continued the trial date due to Plaintiff not being properly prepared but did not extend the motion cutoff dates. Accordingly, Plaintiff’s Motion is untimely.  Even were the motion cutoff dates extended, Plaintiff failed to comply with the minimum notice under CCP Section 437c(a)(2) which requires that a motion for summary judgment be filed at least 75 days prior to the hearing date.  Plaintiff filed the Motion on August 25, 2022 for a hearing date of September 19, 2022, substantially less than the required 75 days notice. 

Plaintiff’s Motion relies on an “Amended 2” complaint which was rejected by the Court’s clerk because Plaintiff attempted to file it without leave of the Court.  Plaintiff cannot seek summary judgment on an unfiled complaint.

            Plaintiff’s Motion fails to comply with the Code of Civil Procedure Section 473c and Rules of Court, Rule 3.1113 in that she did not file a separate statement of undisputed material facts, did not file any declarations in support of the Motion, did not file any exhibits or other evidence in support of the Motion, and did not cite any law in support of the Motion. 

The Court does not address the issue of whether Defendants Feldman & Rothstein, P.C., and Marsha Mao were served.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Young Chow Dai’s MOTION FOR SUMMARY JUDGMENT is DENIED.

Moving party is ordered to give notice.