Judge: Linda S. Marks, Case: 2021-01188730, Date: 2023-07-17 Tentative Ruling
Motion for Summary Judgment and/or Adjudication filed by Joshua G. Bouck and Janine M. Bouck on 4/28/23
Defendant JOSHUA GILBERT BOUCK AND JANINE MUNIZICH BOUCK move this Court for an order granting summary adjudication in Defendants’ favor pursuant to CCP§437c.
Issue No. 1: Plaintiffs' cause of action under W&I Code§ 15610.30 fails on the grounds that Plaintiffs cannot prove that there was 1) a transaction or agreement between Plaintiffs and Defendants, 2) an act of egregious abuse, 3) anything financial about this cause of action, each of which are required for this cause of action.
Issue No. 2: Plaintiffs' cause of action under W&I Code§ 15610.30 fails on the grounds that Plaintiffs cannot prove wrongful use, which is a required element of this cause of action.
Pursuant to CCP§437c(f)(1):
(f)(1) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.
Here, Defendants seek summary adjudication as to two issues relating to Plaintiff’s 5th cause of action for Elder Abuse.
Issue 1:
It is unclear in reading Issue 1 whether Defendants are seeking adjudication of elements of a cause of action, rather than a cause of action, or whether they are trying to suggest there is no merit to the cause of action because of an affirmative defense.
W&I Code§ 15610.30(a) defines “Financial abuse” of an elder as occurring when a person or entity does, inter alia: “(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code section 15610.03(a)(1).)
“Wrongful use” occurs if “[a] person or entity...takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (W&I Code§15610.30(b).)
Notably, as to issue 1, Defendant has not established that any of the subparts for adjudication involve elements of the cause of action or are an affirmative defense.
Furthermore, nothing in the plain reading or meaning of §15610.30 could be interpreted to mean that a transaction or agreement must exist between the parties in order for a cause of action to be maintained. Nor is the term “egregious abuse” referenced in the code. Finally, if Defendants essentially converted Plaintiffs’ property to their own, certainly something “financial” occurred, as real property has value, and there is a financial component to having it restored.
Tentative Ruling: The Court DENIES Defendants’ motion as to ISSUE 1.
Issue 2
This issue involves whether Defendants retained the property for a wrongful use, which is defined as, “among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.”
Curiously, neither Defendant provides a declaration as to whether they knew the removed hedges were on their property and when they learned otherwise. Nor do they mention their installation of pavers allegedly on Plaintiffs’ property, and pled in the FAC. [See FAC ¶55. ] Rather, they direct the Court to evidence where Mr. Pieczentkowski was asked “before they cut down the hedge, they believed they owned the property, correct? In response, Plaintiff testified “they must have.” [SUMF No. 6]
However, this suggestion by Plaintiff as to what Defendants may or may not have known is not evidence of what Defendants actually knew and whether they knew their conduct in removing the hedge and installing pavers was harmful to Plaintiffs. The Court, therefore, sustains the Plaintiff’s objection to this testimony. It is also rather immaterial to actual knowledge what the prior owner of Defendant’s property knew about the property line. [SUMF No. 14, 15. ]
And while there is some evidence (trash can placement, and placement of shed), which would have a tendency to show lack constructive knowledge as to true nature of the property line, there are triable issues of material fact as to whether Defendants’ continuing trespass was harmful once they had rather solid evidence the subject property was not theirs. [See for example Declaration of Marshall Pieczentkowski¶¶11, 12, 13, 14, 15, 16, 22, Exs. B-1, B-2, B-3, A-5, A-6.]
Tentative Ruling: The Court DENIES Defendants’ motion as to ISSUE 2.
Plaintiff’s Objections (ROA 255)
In determining whether there is any “triable issue,” the court must consider all evidence submitted by the parties except that to which objections have been made and sustained by the court. [CCP § 437c(c); see Hernandez v. Hillsides, Inc. (2009) 47 C4th 272, 281.]
In ruling on the motion, the court need only rule on those evidentiary objections that it deems material to disposition of the motion. [CCP § 437c(q)]
Initially, there is no place for the Judge’s signature which is in violation of CRC, Rule 3.1354(c). Regardless, the Court concludes as follows:
1. Overrule. 2. Immaterial. CCP§437c(q) 3. Sustain. 4. Sustain. 5. Overrule. 6. Overrule. 7. Overrule. 8. Overrule. 9. Overrule. 10. Overrule. 11. Overrule. 12. Overrule 13. Overrule 14. Overrule 15. Sustain 16. Sustain 17. Sustain 18. Sustain 19. Sustain 20. Sustain 21. Sustain 22. Sustain 23. Sustain 24. Sustain 25. Overrule
Plaintiff to give notice.