Judge: Kenneth J. Medel, Case: 37-2022-00019022-CU-BC-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2022-00019022-CU-BC-CTL OCHOA VS OCHOA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 12/08/2023

Defendant Ryan Ochoa's Unopposed Motion for Summary Judgment is DENIED.

Preliminary Matters A separate statement of undisputed material facts in support of a motion for summary judgment is required to 'separately identify' each cause of action that is the subject of the motion and each supporting material fact claimed to be without dispute with respect to the cause of action. (Cal. Rules of Court, rule 3.1350(d)(1).) Defendant's separate statement does not comply with this rule, as Defendant did not identify any of the four causes of actions in his separate statement. (See ROA 80.) Given Defendant is seeking summary judgment, it would appear that his separate statement should have separately identified each cause of action. Nor does the separate statement comply with CRC 3.1350(d)(3), which requires that '[c]itation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.' (Emphasis added.) The failure to comply with the separate statement requirements could 'in the Court's discretion constitute a sufficient ground for denying the motion.' (Code Civ. Proc., § 437c(b)(1).) In other words, the Court could deny the motion for this reason alone.

Discussion According to the proof of service, Defendant electronically served the instant motion on the self-represented Plaintiff. (ROA 83.) However, a party that is not subject to mandatory e-filing must be served by non-electronic methods unless the party has affirmatively consented to electronic service.

(Code Civ. Proc., § 1010.6; Cal. Rules of Court, rule 2.251; San Diego Superior Court Local Rule 2.1.4 [encouraging but not requiring efiling/service for self-represented parties].) Nothing in the record indicates Plaintiff filed and served Judicial Council Form EFS-005-CV (Consent to Electronic Service and Notice of Electronic Service Address) or otherwise affirmatively consented to electronic service as set forth in the rules. (See CRC 2.251(b); Local Rule 2.1.4.) Moreover, Plaintiff's substitution of attorney form filed and mail served on August 30, 2023 does not include an email address for the now self-represented Plaintiff. (See ROA 32.) No opposition is on file. Because there is not a valid proof of service, the motion must be denied.

Assuming electronic service on the self-represented Plaintiff was proper, Defendant has not met his burden on summary judgment to show the absence of a triable issue of fact.

Summary judgment 'shall be granted if all papers submitted show that there is no triable issue as to any Calendar No.: Event ID:  TENTATIVE RULINGS

3080615  37 CASE NUMBER: CASE TITLE:  OCHOA VS OCHOA [IMAGED]  37-2022-00019022-CU-BC-CTL material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ. Proc., § 437c.) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If a defendant meets their burden, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c(p)(2); Aguilar, supra, 25 Cal.4th at 849-851.) If the plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) In conducting this analysis, the court must strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-39), and may not weigh the evidence or conflicting inferences. (Aguilar, supra, 25 Cal.4th at p. 856.) ' 'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed [together with] a reference to the supporting evidence.' ' (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168, emphasis original and citations omitted.) For the reasons set forth below, Defendant has failed to set forth 'all material facts contended to be undisputed together with supporting evidence' and failed to meet his initial burden. (Code Civ. Proc., § 437c(b)(1).) Defendant argues there are no triable issues of material fact as to Plaintiff's causes of action for unjust enrichment and breach of agreement on the grounds that Plaintiff's payments to Defendant were monetary gifts that were not part of a contract or a business investment, and Plaintiff knew he would not be compensated. Defendant's third statement of undisputed material fact states: 'Plaintiff [sic] emails with Defendant agreeing that monetary transfers were gifts for Defendant's real estate investment in his future. Communications show there was no agreement for Defendant to compensate Plaintiff for sale of property.' (ROA 80, Separate Statement, at p. 2: 12-16.) However, Defendant fails to include these emails or other communications in support of the motion. Nor has Defendant provided any evidence to show Plaintiff intended to treat the payments as gifts to Defendant, Plaintiff held himself out as making gifts, or Plaintiff knew Defendant did not expect to owe Plaintiff anything in return. Defendant has thus failed to meet his initial burden as to whether the payments were gifts. As this was the only ground cited by Defendant for summary judgment on the unjust enrichment cause of action, Defendant has not met his burden to show there are no triable issues of material fact, and the burden did not shift to Plaintiff.

Defendant has only moved for summary judgment and did not move for summary adjudication.

Accordingly, Defendant's motion is denied.

Defendant also argues that Plaintiff has not provided evidence to support the existence of an express or implied agreement. Defendant cites Plaintiff's written discovery responses to argue that no express or implied contract was ever created between the parties. However, the Court cannot determine whether these are Plaintiff's actual discovery responses, as Defendant has failed to provide complete copies of Plaintiff's responses or provide signed verifications. (ROA 81, Exs. E-F.) Nor can the Court determine the text or nature of the discovery requests that Plaintiff has responded to, as Plaintiff's responses did not include the text of the requests, and Defendant has not provided copies of the original requests or set forth the requests in the separate statement. (See ibid.) Defendant's unsupported contentions on Plaintiff's lack of evidence are insufficient, and Defendant improperly seeks to shift his initial burden on summary judgment to Plaintiff.

The other grounds for summary judgment on the breach of agreement claim are based on facts and arguments that Defendant did not raise in the notice of motion or set forth in the separate statement with supporting evidence. (See Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 876, review filed (Jan. 16, 2024) ['Trial courts [fn] should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement'].) Accordingly, Defendant has also failed to meet his initial burden on the breach of agreement claim.

Defendant contends Plaintiff's promissory estoppel cause of action fails because Plaintiff has not Calendar No.: Event ID:  TENTATIVE RULINGS

3080615  37 CASE NUMBER: CASE TITLE:  OCHOA VS OCHOA [IMAGED]  37-2022-00019022-CU-BC-CTL provided evidence that Defendant made any promises to Plaintiff regarding the subject property or compensation for the sale of the property. Similarly, Defendant argues Plaintiff's fraud cause of action fails because Plaintiff has not provided evidence that Defendant made representations that would induce Plaintiff's reliance. Defendant's arguments on these causes of action appear to rely on the same evidence set forth above. For similar reasons, Defendant has improperly shifted the initial burden on Plaintiff, and Defendant failed to set forth these grounds in the separate statement with supporting evidence. (See Beltran, supra, 97 Cal.App.5th at p. 876.) Accordingly, Defendant has also failed to meet his initial burden as to the promissory estoppel and fraud claims.

Conclusion Based on the foregoing, Defendant's motion for summary judgment is denied.

The minute order will be the final ruling of the Court. Defendant is ordered to serve written notice of ruling on all parties.

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