Judge: Kristin S. Escalante , Case: 19STCV19365, Date: 2023-03-24 Tentative Ruling
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Case Number: 19STCV19365 Hearing Date: March 24, 2023 Dept: 24
MOVING PARTY: Steve S. Kim (Cross-Defendant)
RESP. PARTY: In Sook Park (Cross-Complainant)
NATURE OF PROCEEDINGS: Hearing on Motion for Summary
Judgment /Adjudication on Second Amended Cross-Complaint filed by In Sook Park
The
above-captioned matters are called for hearing.
The Court has
read the moving papers in the above-captioned motions and announces its
tentative rulings in open Court.
The Motion for
Summary Judgment or alternatively, Summary Adjudication on second Amended
Cross-Complaint filed by In Sook Park reservation no.: 124484325703 filed by
Cross-Defendant Steven S. Kim on 7/18/2022 is DENIED.
The Joinder to Motion for Summary Judgment / Adjudication
on Second Amended Cross-Complaint filed by In Sook Park reservation no.:
124484325703 filed by Cross-Defendants Good Hill Inc., Min Young Chung, and
Shannon Sung on 07/19/2022 is DENIED.
Plaintiff and Cross-Defendant Steven S. Kim (“Kim”) moves
for summary judgment on the Second Amended Cross-Complaint (“SACC”) of
Defendant and Cross-Complainant In Sook Park (“Park”). The issues as laid out
in the notice of motion and further framed by the court, given their overlap,
are that (i) the mediation privilege bars the cross claims, (ii) the litigation
privilege bars the cross-claims, (iii) only inadmissible evidence supports the
crossclaims, (iv) the second (breach of fiduciary duty), fifth (elder abuse),
and seventh (unfair business practices) causes of action all fail as a matter
of law (v) Kim did not “cause” Parks harm as he was not required to walk away
from the parties’ agreement, (vi) Park cannot prove punitive damages, and (vi)
Park consented to her agent Shannon Sung’s (“Sung”) conduct. (Notice of Motion,
at pp. 2-3.) However, Kim does not provide any briefing of issue regarding
Park’s consent to dual representation.
Kim filed his initial complaint against Park, individually
and as trustee of the Park Family Trust, and James Park (“James”) alleging
causes arising from the parties’ real estate transaction. Kim amended the
complaint twice, eventually filing the operative second amended complaint
(“SAC”) in July 2019. The SACC alleged causes of action for declaratory relief,
specific performance, breach of contract of sale, breach of cancellation of
contract, recission of cancellation agreement, and unfair business practices.
Kim asserted all causes of action against Park.
Park, in turn filed a cross-complaint which she amended
twice. The operative SACC alleged causes of action for breach of fiduciary
duty, aiding and abetting breach of fiduciary duty, fraud, negligent hiring and
supervision, elder abuse, equitable indemnity, and unfair business practices.
Park asserted the second (aiding and abetting), fifth (elder abuse), and
seventh (unfair business practices) against Kim.
Park’s request for judicial notice filed on 01/05/2023 is
denied as unnecessary to the court’s ruling. (See Evid. Code, §452; RJN, Ex. 8
[Kim Divorce Petition], Ex. 26[Judgment of Dissolution of Kim Marriage].)
Kim’s request to strike Exhibits A – J filed by Park is
granted as the exhibits are not material to the court’s ruling. The court
denies the request to enter an order sealing the records as unnecessary by
virtue of the court’s ruling.
Kim’s 2/10/2023 evidentiary objections to the declaration
of Allan Wallace are overruled as to Nos. 1-9, and 11, and otherwise sustained.
Kim’s 2/10/2023 objection to the declaration of James Park
is overruled only as to No 1 and are otherwise sustained. Park states that text
message translation he provides is “a true and correct translation, from Korean
to English,” under penalty of perjury which appears consistent with the
requirements of Rules of Court Rule 3.1110, and Evidence Code section 751,
subdivision (c). Kim’s citations to the rules and standards required of a
certified court interpreter are inapplicable as the translation of the text
messages is not a court proceeding. (See Gov. Code § 68560.5 [defining court
proceeding].) In other words, it does not appear Rule of Court Rule 3.1110
contemplated a certified court interpreter when it states, “qualified
interpreter.”
Kim’s 2/10/2023 evidentiary objections to the declaration
of David Palmer are overruled as to Nos. 5, 7, 8, 14, and otherwise sustained.
The court declines to rule on Kim’s 2/10/2023 evidentiary
objections to the Exhibits A-J filed under seal as the court granted the
request to strike the exhibits.
Separately, Cross Defendants and Cross-Complainant Good Hill
Inc., Min Young Chung, and Shannon Sung (collectively “Joinder Defendants”)
move to join Kim’s motion for summary judgment or, in the alternative, summary
adjudication of the SACC.
First, Park objections on the grounds that the joinder in
the motion for summary judgment is untimely. This is incorrect.
Joinder Defendants filed and served the Notice of Joinder
and Joinder on July 19, 2022. At that time, the motion for summary judgment and
the trial were both scheduled for 10/31/2022. (Feb.
2, 2022, Minute Order.) A motion for
summary judgment shall be heard no later than 30 days before the date of trial
absent the court’s order based on good cause. (Code Civ. Proc., §473c, subd.
(a)(3).) The motion and supporting papers must be served 75 days prior to the
hearing. (Code Civ. Proc., §473c, subd. (a)(2).) Thus, by statute, the date of
the hearing on 10/31/2023 was improper. Perhaps in light of the aforementioned,
on August 11, 2022, Kim moved for an order continuing trial or in the
alternative finding good cause to hear the motion for summary judgment within
30 days of trial. The court denied Kim’s motion, but on its own motion
continued the trial to January 2023. (Aug.
11, 2022, Minute Order.) Thus, the summary
judgment hearing was no longer within 30 days of trial as of August 2022.
Regardless of the improperly scheduled hearing date, the moving papers were
served timely. By Plaintiff’s own admission, the moving papers were served 104
days prior to the hearing. (Opp. to Joinder, at p. 1:06-14.) Accordingly, the
court considers the motion to join.
Joinder Defendants request to join the motion for summary
judgment as the issue of law and fact against Park are “congruent as to the
allegations made by Park in her [SACC].” (Motion for Joinder, at p. 2:04.) To
bring a valid motion for summary judgment, the motion shall be supported by
“affidavits, declarations, admissions, answers to interrogatories, depositions,
and matters of which judicial notice shall or may be taken.” (Code Civ. Proc.,
§437c, subd. (b)(1).) Joinder Defendants have not submitted a procedurally
proper motion for summary judgment. (Code Civ. Proc. § 437c; see also Rules of
Ct, Rule 3.1250.)
They incorporate by reference the entire briefing by Kim in
their moving papers with no discussion about how the motion applies to the
Joinder Defendants specifically. Joinder Defendants submit an identical—apart
from changes to the caption, headers, and footers—separate statement to Kim.
They also submit no evidence or declarations, and appears they rely on the
evidence Kim’s submits support of the motion. The joinder appears to be simply
a statement supporting summary judgment in favor of Kim, rather than motion
regarding Joinder Defendants. In reply, they submit some argument related to
their own causes of action, however, points raised for the first time in
the reply brief are generally not considered, out of fairness to the
respondent. (Crowley Mar. Corp. v. Bos. Old Colony Ins. Co. (2008) 158
Cal.App.4th 1061, 1072.)
Accordingly, the court denies the motion to join. As a
result, the court also declines to rule on Joinder Defendants objections to
evidence.
The allegations of the SACC turn on a real estate
transaction between Park and Kim regarding the real property located at 702
South Serrano Avenue, #802, Los Angeles, California (“subject property”). The
Park Family Trust (“Park Trust”), of which Park was the trustee, is the title
holder of the subject property. (SACC, ¶22.) Park was an 81-year-old widow.
(SACC, ¶1) Her husband passed away in January 2015. ( SACC, ¶1, fn. 1.) At some
point after that Sung—a real estate broker—approached Park about listing the
subject property for sale. Sung did this in violation of Park’s daughters
requests and instruction not to approach Park about selling the subject
property given her fragile state. (SACC, ¶¶23-26.)
Nonetheless, Sung proceeded to pressure Park into executing
a residential listing agreement. (SACC, ¶27.) Park believed the listing price
would be $1,120,000.00, but the listing agreement stated it was for
$1,116,000.00. Park was unaware of the ramifications of entering into a listing
agreement. (SACC, ¶27.)
As some point Sung introduced Kim’s offer on the subject
property without alerting Park to the fact that Sung represented both Kim and
Park. (SACC, ¶28.) Park believed Sung would only be representing her during the
sale. (SACC, ¶29.) After Sung aggressively encouraged Kim’s offer to Park
despite it being lower than Park’s asking price, Park relented. In September
2016 the parties execute a residential purchase agreement and joint escrow
instruction (“Purchase Agreement”), and a Disclosure Regarding Real Estate
Agency. However, Park included further terms in the Purchase Agreement during
her signing which Kim never accepted. It was at the signing that Park learned
of Sung’s dual representation. (SACC, ¶¶28-29.)
A day after signing the agreement Park determined it was
not in her best interest to sell the subject property and immediately requested
Sung cancel the Purchase Agreement. Sung, fearing losing the commission,
falsely represented to Park that Park would be obligated to pay Kim up to
$100,000 for cancelling the agreement. (SACC, ¶¶31-32.) In response, Park twice
offered Kim $50,000 to cancel the agreement, but he refused. Instead, Kim
requested $100,000—a portion of which Kim intended to pay to Sung—to cancel the
agreement. (SACC, ¶¶31-37.)
Sung continued to proceed with the sale and prepared a
Disclosure Statement which was purportedly signed by Park, but Park contests
this. The Disclosure Statement also contained material omissions regarding
issue with the subject Property. (SACC, ¶¶38-42.) Concurrently, Kim, failed to
remove all contingencies to proceed with the sale of the subject property, but
Sung did not tell Park. Instead, Sung coerced Park to engage in a sham
mediation in spite of the unenforceable Purchase Agreement. (SACC, ¶¶44-49.)
During the purported mediation, Kim and Sung convinced Park that she was
required to sign a cancellation agreement (“Cancellation Agreement”) which
provided a $70,000 cancelation payment to Kim and a $15,000 commission to Sung.
Kim eventually sued Park based on the underlying real estate transaction and
Park countersued. (SACC, ¶¶50-53.)
Park has since passed away and her interests are maintained
by her son—James.
1. Mediation Privilege
Kim first argues that the mediation privilege is a complete
bar to all evidence Park may have to support her claims in the cross-complaint.
Under the mediation privilege “[n]o evidence of anything
said or any admission made for the purpose of, in the court of, or pursuant to,
a mediation or a mediation consultant is admissible or subject to discovery and
disclosure of the evidence shall not be compelled. . .” (Evid. code, § 1119.) A
mediation means “a process in which a neutral person or persona facilitate
communication between the disputants to assist them in reaching a mutually
acceptable agreement”, while a mediator is the “neutral person who conducts a
mediation.” (Evid. Code, § 1115, subd. (a), (b).)
The parties dispute whether the meeting conducted by Sung
between Kim and Park which led to the Cancellation Agreement was a “mediation”
for the purpose of the mediation privilege.
As a preliminary matter, the cross-complaint alleges
conduct beyond the formation of the Cancellation Agreement, which would be
outside the scope of the mediation privilege if it applied. As such, summary
judgment would be a broad solution to a narrow evidentiary exclusion. “The
mediation confidentiality statutes govern only a narrow category of
mediation-related communications, but they apply broadly within that category.
. .” (Cassel v. Superior Court (2011) 51 Cal.4th 113, 132) The court,
nevertheless, considers the argument.
Kim argues the meeting between Kim, Park and Sung was a
mediation. (MSJ at p. 19 [“Park cannot refute the undisputed material
fact that at the mediation meeting Ms. Sung facilitated and assisted [] Park
and [] Kim in reaching their own agreement.”].) In
support of the contention that the meeting was a mediation, Kim refers the
court to Exhibit Q which contains text messages between Sung and Kim. (Moving
Party’s Undisputed Material Facts [UMF], No. 59) However, the compendium
inadvertently omits Exhibit Q. Kim also attaches his transcript which states
that he had a meeting with Park in Orange County which Sung referred to as a
“pre-mediation process.” (Declaration of Jessica Rosen [“Rosen Decl.”], ¶2;
Compendium of Exhibits [“Exhibits”] Ex. A at p. 157:14-158:15.) Kim’s cited
deposition testimony never refers to the meeting between the parties as a
“mediation” but as a “pre-mediation process.” Moreover, according to the
Purchase Agreement, the parties “agree[d] to mediate any dispute or claim
arising between them out of this Agreement, or any resulting transaction before
resorting to arbitration or court action through the C.A.R. Real Estate
Mediation Center for Consumers. . . or through any other mediation provider or
service mutually agreed to by the Parties.” (Exhibits, Ex. H, at p. 8.)
Kim does not explain why—if the parties were going to
attend mediation—they did not use the previously agreed upon Real Estate
Mediation Center for Consumers. Indeed, taking the evidence in the light most
favorable to the non-moving party, it appears the Sung’s suggestion of a
“pre-mediation process” would have been a voluntary step prior to proceeding
with mediation per the terms of the Purchase Agreement. Kim also does
sufficiently explain how the “pre-mediation process” described amounts to a
mediation beyond stating that Sung could be an impartial mediator.
Accordingly, Kim has not met
his initial burden to show Park cannot present evidence in support of her
cross-complaint due to the mediation privilege. (See Schmidt v.
Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119 [defendant’s burden on summary
jdugment].) Unless and until a defendant meets that
burden, the plaintiff has no burden to present controverting evidence. (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal. App. 4th 454, 468 [“There is no obligation on the opposing party . . . to
establish anything by affidavit unless and until the moving party has by
affidavit stated facts establishing every element . . . necessary to sustain a
judgment in his favor.”])
2. Litigation Privilege
Next Kim argues that the
litigation privilege is a complete bar to all evidence Park may have to support
her claims in the cross-complaint.
The litigation privilege
affords an absolute privilege for communications made in the course of judicial
proceedings. (Civ. Code, §47, subd. (b).) The privilege applies “to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical relation to the
action.” (Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal. App. 4th 531,
543.)
Kim argues the conduct at the
alleged mediation is protected by the litigation privilege. However, Kim’s
articulation of the privilege is overbroad. While it is true that the privilege
can extend to time prior to or after a judicial proceeding, Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1057, that is not
equivalent to applying the privilege to any event in which the parties
contemplate litigation. Regarding prelitigation events, it is paramount that “a
lawsuit or some other form of proceeding must actually be suggested or
proposed, orally or in writing. . . [and] the verbal proposal of litigation
must be made in good faith.” (Edwards v. Centex Real Est. Corp. (1997) 53 Cal.
App. 4th 15, 34-35 [internal emphasis omitted].) “[A] threat to file a lawsuit
would be insufficient to activate the privilege if the threat is merely a
negotiating tactic and not a serious proposal made in good faith contemplation
of going to court.” (Ibid.)
Here, Kim does not present
evidence that either party threatened litigation prior to pre-mediation process
meeting. Further, looking at the limited evidence in Park’s favor, the threat
of litigation two days after the meeting could be categorized as negotiation
tactic. Indeed, Park did not file suit until after Kim initiated his suit
several years later.
Accordingly, Kim has not met
his burden to establish Park has no evidence in support of her cross-complaint
claims based on the litigation privilege.
3. Admissibility of Evidence
Kim next argues any of his settlement
communications relating to the meeting are entirely inadmissible under Evidence
Code sections 1152 and 1154. Evidence Codes sections 1152 and 1154 do not bar
evidence of a compromise categorically. They bar admission of evidence of a
compromise for the purpose of proving the validity of a claim or any part of
it. The evidence is still admissible for other purposes. Accordingly, summary
judgment is denied on this ground.
4. Crossclaims as a Matter of Law
The next issue is whether the
second (aiding and abetting breach of fiduciary duty), fifth (elder abuse), and
seventh (unfair business practices) causes of action all fails as a matter of
law, as argued by Kim.
a. Cause of Action Two - Aiding
and Abetting Breach of Fiduciary Duty
To establish a claim for breach
of fiduciary duty, Park must prove “(1)
existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage
proximately caused by the breach.” (Gutierrez v. Girardi (2011) 194 Cal.
App. 4th 925, 932.) A fiduciary relationship requires that a relation
existing between parties to a transaction wherein one of the parties is duty
bound to act with the utmost good faith for the benefit of the other
party. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29 [internal
citations omitted].) A relationship ordinarily exists when “a con¿dence is
reposed by one person in the integrity of another, and . . . the party in whom
the con¿dence is reposed, if he voluntarily accepts or assumes to accept the
con¿dence, can take no advantage from his acts relating to the interest of the
other party without the latter’s knowledge or consent.’” (Ibid.)
“Liability may also be imposed on one who aids and abets the
commission of an intentional tort if the person (a) knows the other's conduct
constitutes a breach of duty and gives substantial assistance or encouragement
to the other to so act or (b) gives substantial assistance to the other in
accomplishing a tortious result and the person's own conduct, separately
considered, constitutes a breach of duty to the third person.” (Stueve Bros.
Farms, LLC v. Berger Kahn (2013) 222 Cal. App. 4th 303, 324.)
Kim has not established that there is no material dispute
regarding whether he aided and abetted Sung in the commission of a breach of
fiduciary duty. Kim argues that there is an absence of any evidence to support
the claim. It is insufficient for the defendant to merely point out the absence
of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 fn
23; see also Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant
must present evidence, typically in the form of factually devoid discovery
responses, showing that plaintiff does not have and cannot obtain evidence to
support his or her claim.” (Gaggero, supra, 108 Cal.App.4th at p. 891.) In the
briefing, Kim solely references James’ deposition testimony. (MSJ, at p.
24:16-20.) James’ deposition testimony does not satisfy this burden.
James’ cited testimony in response to the question “what
violation did Dr. Kim commit towards your mother by Dr. Kim seeking to increase
his settlement amount?” is broad. (Exhibits, Ex. B, at p. 222:13-15.) After
some back and forth he states “[Kim] has no basis for asking for any kind of
monetary compensation”, and “during that informal meeting on November 6, 1016,
he was basically badgering my mother to cough up more money. So I guess, either
way, it relates to the same contention that I just told you, that he had no
basis for asking for any kind of monetary compensation.” (Exhibits, Ex. B, at
pp. 222:13-223:24.) This testimony does not support the contention that there
is no evidence regarding whether Kim aided and abetted Sung in the commission
of a breach of fiduciary duty. Instead, it is evidence that Park believed the
pre-mediation process meeting was an opportunity to pressure Park for further
funds. Accordingly, Kim has not satisfied his initial burden and summary
adjudication of cause of action two is denied.
Assuming arguendo, Kim has satisfied his burden, then Kim
would be correct that Park cannot rely on her own interrogatory response to
survive a motion for summary judgment. (See Bayramoglu v. Nationstar Mortg.
LLC, 51 Cal. App. 5th 726, 740 [“To start, [plaintiffs] offer no competent
evidence to support their claim . . . They cite only the separate statement,
which is not evidence, and their own form interrogatory responses, which cannot
itself serve as competent evidence to create a genuine issue of material
fact.”]; see also Code of Civ. Proc., § 2030.410.) The court would need to examine
the evidence Park cited beyond the interrogatory responses to determine if she
had successfully raised a material dispute.
Park submitted the declaration of Allan Wallace in support
of the contention that Sung breached her fiduciary duties to Park and that Kim
aided her. Wallace, a licensed attorney and real estate broker who—based on his
list of documents reviewed—determined that Sung and Good Hill Inc., violated
the standard of care and custom and practice of the real estate industry.
(Wallace Decl., ¶4.) Further, it appeared to Wallace that Sung and Kim worked
in concert to resolve the matter in a manner beneficial to Kim, by delaying
meetings in Kim’s favor and failing to disclose to Park that Kim could close
the sale. (Wallace Decl., ¶5.) Accordingly, even if Kim had met his burden,
Park presented evidence of a material dispute regarding whether Kim aided and
abetted Sung in breaching her fiduciary duties to Park.
b. Cause of Action Five -
Financial Elder Abuse
To prove a claim for financial elder abuse, Park must prove
(1)
that defendant took, hid, appropriated, obtained or retained the property of
the elder; (2) that the plaintiff is 65 years of age or older; (3) the
defendant took, hid, appropriated, obtained or retained the property for wrongful
use, intent to defraud, or by undue influence; (4) that plaintiff was harmed;
and (5) that defendant’s conduct was a substantial factor is causing
plaintiff’s harm. (See CACI 3100. Financial Abuse, Essential Factual Elements
(Welf. & Inst. Code, §15610.30).)
As to financial
elder abuse, Kim makes the same argument as above—that none of the evidence
supports that he engaged in financial elder abuse—but he again fails to support
this argument with evidence that Park cannot prove financial elder abuse. (See
Gaggero, supra, 108 Cal.App.4th at p. 891.) Accordingly, the court denies
summary adjudication of cause of action five.
c. Cause of
Action Seven - Unfair Business Practices
Finally, to prove a claim for unfair business practices plaintiff
must prove an unlawful, unfair, or fraudulent business practices or acts
and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof.
Code § 17200 et seq. (“Section 17200”); see also Podolsky v. First Healthcare
Corp. (1996) 50 Cal.App.4th 632, 647.) “An unlawful business practice or act
within the meaning of the UCL is an act or practice, committed pursuant to
business activity, that is at the same time forbidden by law.” (Bernardo v.
Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351.) A
plaintiff needs to identify statutory, regulatory, or decisional law that the
defendant has violated. (Id. at 352.)
Kim argues that Park’s unfair business practices claim fails
because Kim is not in the business of buying and selling real estate, did not
attempt to purchase the subject property for a business venture, and wanted to
purchase the subject property as a personal residence. (Motion, at p.
25:02-05.) Kim does not cite to any evidence to support these broad statements.
This is insufficient to meet Kim’s initial burden. Summary adjudication as to
cause of action seven is therefore denied.
5. Causation
Kim next argues Park cannot
prove causation for any of her claims because he did not cause her to cancel
the Purchase Agreement.
Causation is a necessary
element of a tort claim. (Whiteley v. Philip Morris, Inc. (2004) 117
Cal.App.4th 635, 696.) However, Kim’s argument that
Park’s damages were only caused by attempting to cancel the Purchase Agreement,
turns on an overly narrow interpretation of Park’s claims. But Park’s claims
extend beyond the Cancellation Agreement. She alleged that Sung and Kim engaged
in a campaign against her, including pressuring her to sell the subject
property, falsely claiming Park had to pay tens of thousands of dollars to
cancel the agreement, insisting Park sell the subject property in lieu of
paying unreasonable and unnecessary cancellation fees, bullying Park to sign
the Cancellation Agreement, and strongarming Park to pay Sung a concurrent
commission payment. (See SACC, ¶¶67, 98-100, 114.) It is
the entire process of selling the subject property, which was inundated with
improper behavior, not just the events surrounding canceling the Purchase
Agreement.
Additionally, Kim argument is a
conclusion without necessary support. He argues Park cannot prove causation
because any harm to Park was caused by her own actions, e.g., choosing to
cancel the agreement. However, Kim does not point to evidence that Park will be
unable establish causation. Instead, he offers an interpretation of what
transpired: Park changed her mind and must suffer the consequences of her
decision alone. (MSJ, at p 25:28-26:07.) This ignores Park’s allegations which
frame the issues—that the entire process was plagued by Sung and Kim’s improper
pressure on Park to sell her property and, when that failed, pressure to pay
them to end the agreement. (See FPI Development, Inc. v. Nakashima (1991) 231
Cal.App.3d 367, 381-382 [“The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues: the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.”].) Rather than establish the
lack of material dispute, Kim’s argument encapsulates the dispute on this
issue—whether Kim caused Park’s damages through his alleged conduct.
Accordingly, the motion is
denied on this ground.
6. Punitive Damages
Finally, Kim argues Park cannot
establish punitive damages because there is no evidence of malice, fraud, or
oppression. He cites no evidence in support of the argument. The
defendant must present evidence, typically in the form of factually devoid
discovery responses, showing that plaintiff does not have and cannot obtain
evidence to support his or her claim.” (Gaggero, supra, 108 Cal.App.4th at p.
891.) Accordingly, the motion is denied as to the
prayer for punitive damages.
Based on the aforementioned,
the motion for summary judgement or summary adjudication in the alternative is
denied.
Moving party is directed to
give notice.