Judge: Linda S. Marks, Case: 01143113, Date: 2022-08-01 Tentative Ruling

Plaintiff’s Motion for New Trail

A plaintiff may make a motion for new trial after a ruling on summary judgment. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.)

Plaintiff moved for relief under each ground stated in Calif. Code of Civil Procedure, section 657, but only addressed the following in its memorandum:

A. The court erred by not allowing plaintiff to submit evidence to address defendant’s reply evidence as to the independence of Key Escrow. The issue of whether Key Escrow is “independent” is not alleged in the third amended complaint (“3rdAC”) and defendant was not required address such allegation to meet her initial evidentiary burden for summary judgment.

B. There is a triable issue as to when Medici received the RBR. Defendant submitted undisputed evidence that the residential building records report (“RBR”) was received by plaintiff’s agent four days before the close of escrow. (Defendant’s separate statement, UMF 12 and 29.) The 3rdAC does not allege that the timing of applying for, or plaintiff’s receipt thereof constituted a breach of the sales contract. Defendant did not have to address this issue to negate the element of breach of the sale contract.

C. The court improperly held that defendant’s timely failure to obtain a of residential building records report was not alleged in the 3rdAC. The court held that the alleged failure to timely apply for, or provide a copy of the RBR was not alleged to be breach of the sales contract, thus defendant was not required to negate the same to negate breach of the sale contract.

D. The court failed to consider the undisputed evidence of the parties’ continued negotiations after the unilateral cancellation. The court did consider this evidence and determined that plaintiff had not shown evidence establishing that defendant had acted to rescind the termination of the sale contract.

E. The court erred by not addressing the $60,000.00 earnest deposit. Plaintiff cites no authority for the proposition that defendant, in order to negate the element of breach of the sale contract, had to resolve the disposition of the $60,000.00 earnest deposit. Additionally, the court ruled on the disposition of the deposit in its 05/22/22 order

Thus, Plaintiff failed to meet its burden under Calif. Code of Civil Procedure, section 657, subsections (1) – (7) for the relief requested.

Tentative Ruling: Plaintiff Medici Partners, LLC’s Motion for New Trial is denied. (See Code Civ. Proc. § 657.)

Moving party is ordered to give notice.