Judge: Mark A. Young, Case: SS027276, Date: 2022-09-28 Tentative Ruling
Case Number: SS027276 Hearing Date: September 28, 2022 Dept: M
CASE NAME: Mangelsdorf,
et al., v. Stephan, et al.
CASE NO.: SS027276
MOTION: Motion
for Summary Judgment/Adjudication
HEARING DATE: 9/28/2022
TENTATIVE
Defendant Nu
Find Homes LLC’s motion is DENIED.
BACKGROUND
On January 18, 2019, Plaintiffs
filed their operative second amended complaint (“SAC”), which contains causes
of action for: (1) slander of title; (2) enforcement of covenants, conditions,
and restrictions (“CC&Rs”) (mandatory injunction); (3) enforcement of
equitable servitudes (Damages); (4) removal of lateral support (damages); and
(5) nuisance (damages). On March 6, 2019, Plaintiff dismissed the slander of
title claim in the complaint.
On March 5, 2021, Nu Find Homes,
LLC (“Defendant”) filed a motion for summary judgment, or in the alternative, a
motion for summary adjudication. The Court granted and denied the motion in
part.
On July 12,
2022, Defendant renewed the motion for summary judgment/adjudication.
Plaintiffs oppose.
Legal
Standard
A party may move for summary
judgment in any action or proceeding if it is contended the action has no merit
or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties' pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“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.” (CCP, § 437c(f)(1).) If a party seeks summary
adjudication as an alternative to a request for summary judgment, the request
must be clearly made in the notice of the motion. (Gonzales v. Superior
Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for
summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action,
affirmative defense, or issue of duty pursuant to” subdivision (t).
(CCP, § 437c(t).)
To
prevail, the evidence submitted must show there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. (CCP, § 437c(c).) The motion cannot succeed unless the
evidence leaves no room for conflicting inferences as to material facts; the
court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when a material fact is the witness’s state of
mind and “that fact is sought to be established solely by the [witness’s]
affirmation thereof.” (CCP, § 437c(e).)
Once
the moving party has met their burden, the burden shifts to the opposing party
“to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here 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.” (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary
judgment motion. The function of the pleadings in a motion for summary judgment
is to delimit the scope of the issues and to frame the outer measure
of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National
Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and
citations omitted.) “Accordingly, the burden of a defendant moving for summary
judgment only requires that he or she negate plaintiff's theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included in the
pleadings.” (Ibid.)
EVIDENTIARY ISSUES
The evidentiary objections are
deemed immaterial given the outcome of the motion. However, the Court would
overrule all of Plaintiffs’ unnumbered objections. Defendant’s objections are
likewise OVERRULED.
Defendant specifically notices their
motion as a “renewed” motion for summary judgment/adjudication, citing section
1008(b), on the grounds that discovery of new facts and evidence,
not reasonably available or anticipated prior to presentation of the original
motion for summary judgment, reveal there is no material fact in controversy
regarding Nu Find’s defenses to the remaining causes of action asserted against
Nu Find. Defendant cites five new facts that they contend they could not
reasonably bring prior to the other motion:
1)
Invasive demolition and testing of the concrete walkway
adjacent to the underground foundation of the remodeled house on the Nu Find
Property, revealing the foundation for the bump out was not changed during Nu
Find’ remodel and is the same foundation used by Quintero when he first
constructed the bump out in 1988; (UMF 109);
2) Depositions
of Nu Find’s immediate prior owners of the Nu Find Property, Paris Morra Bauman
and Jonathan Bauman, in which they testified they did not have or believe they
needed Plaintiffs’ permission to maintain the bump out in the same condition it
was in when they purchased the Nu Find Property from Quintero; (UMF 110);
3) Deposition
of the foreman for framing of Nu Find’s remodel, Daniel Caro, in which he
testified the same foundation and framing for the bump out that previously
existed was re-used in the remodel without any changes or alterations of the
dimensions of the bump out, and that the space occupied by the bump out did not
change as a result of the remodel; (UMF 111);
4) Ruling
of the Court on Nu Find’s original motion for summary judgment, summarily
adjudicating Plaintiffs’ Fourth Cause of Action, for withdrawal of lateral
support, against Plaintiffs and in favor of Defendant Nu Find; (UMF 112); and
5)
Review of the De Leon Survey, showing the location of
the bump out before Nu Find’s remodel work, with a length of 34 feet, 6 inches,
and distances of west corner to property line of 4 feet, 3 and 2/8 inches, and
east corner to property line of 4 feet, 5 and 5/8 inches; (UMF 114 – 119).
Note
that the Court would not consider number 4 as a new or different fact or
circumstance sufficient to support a new motion. This is simply a ruling of law
on the previous motion itself. Any facts supporting that ruling were necessarily
already present on the record.
Pursuant to CCP
§ 1008(a), a motion for reconsideration must be brought “within 10 days after
service upon the party of written notice of entry of the order and based upon
new or different facts, circumstances, or law, make application to the same
judge or court that made the order, to reconsider the matter and modify, amend,
or revoke the prior order.” (New York Times Co. v. Superior Court
(2005) 135 Cal.App.4th 206, 212, 215 [it is an abuse of discretion to grant a motion
for reconsideration if movant does not establish all section 1008
requirements].)
In New York
Times Co., the appellate court held that although the evidence was new to the trial
court, it was available to throughout the discovery process and was easily
obtainable, as demonstrated by the subsequent depositions. (135 Cal.App.4th at 213-215.)
Instead, the court found that the movant made
a strategic decision at the time of the hearing that the evidence was not
necessary to defeat a motion for summary judgment. (Id. at 215.)
Plainly, the statute
requires that the motion for reconsideration be brought within 10 days after
service of the notice of entry of the order. Ignoring that this was not brought
within that time period, Defendant’s motion is still not based on new or
different facts which could not have been reasonably brought with the original
motion.
Notably,
Defendant asserts the motion on the same issues, simply contending they have
new evidence on those same issues. To wit, in its original motion for summary
judgment motion, Defendant asserted that Plaintiffs’ causes of action based on
the “bump-out” are time-barred because the bump out was constructed in 1988.
Plaintiffs submitted declarations disputing whether it truly was the same “bump-out”
constructed by the previous owners, the Quinteros. The Court found a factual
controversy regarding the length of the bump out, prior to the remodel. Defendant
now seeks to provide further facts in support of their side of the dispute.
The
record establishes that Nu Find had access to all the information it now cites
as “new facts or evidence” well before the MSJ was filed. Defendant contends they could not have
brought up these facts because they didn’t realize they had to do discovery on
those facts to support their initial motion. (See UMF 96-97.) However, Defendant
only points out that the discovery was difficult and expensive, but do not
explain why it was reasonable to delay such discovery. Defendant thus admits that the reason for
this motion is that they failed to anticipate that certain evidence would be
needed to prevail on their initial motion for summary judgment/adjudication. Based
on the pleadings alone, Defendant could have reasonably concluded
that it would need to establish the location and dimensions of their claimed
easement. Since Defendant contended their easement was the same as the
Quinteros bump-out, Defendant should have reasonably expected to provide
evidence that it was the same bump-out. Looking further to the entire record, on
March 15, 2021, Plaintiffs filed a supplemental declaration in opposition to
the Motion to Expunge Lis Pendens, which included the “Site Plan” that
Defendant contends was new evidence presented in opposition. Notably, the same
experts who submitted declarations in support of the Renewed MSJ. Defendant
could have conducted discovery, just as they did subsequent to the motion. Given that Defendant could have
conducted the discovery, but chose not to due to expense and because they
believed it was unnecessary, the Court is not inclined to find these as new or
different facts.
Accordingly, the motion is
DENIED.