Judge: Mark H. Epstein, Case: 20SMCV00636, Date: 2024-02-28 Tentative Ruling
If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.
Case Number: 20SMCV00636 Hearing Date: March 14, 2024 Dept: I
The motion is
DENIED WITHOUT PREJUDICE. The court will
allow defendant to bring the motion again and will set the trial far enough out
at the upcoming TSC to so allow.
The court is more than a little bit troubled.
Turning first to plaintiff. The court understands that Ms. Anisman is not the same lawyer who handled some of the case earlier. But her statements to the court were improper. She needed to do whatever was needed to get up to speed before arguing the case. She cannot hide behind the fact that she is new when she makes representations to the court that turn out to be not correct on the theory that another lawyer was handling the case then. The court assumes that a lawyer from the same law firm arguing a summary judgment motion or putting in a supplemental declaration is speaking for the firm unless otherwise stated. Where a statement is not based on personal knowledge, then the declaration can so state. And if the lawyer just does not know, then the lawyer ought to say nothing at all. While a statement as to what others did might be hearsay, it might also be based on business records. In any event, a lawyer making a representation to the court cannot base it on that lawyer’s knowledge to the exclusion of other lawyers who were are or were in the firm handling the matter, especially when doing so is misleading, to put a nice spin on it.
Turning next to the defense. Defendant’s representations regarding the provenance of the documents were true and correct. His statements that the documents had been turned over well before the motion were also true and correct. His statements that the documents were in plaintiffs’ actual possession as early as April 2017 were also correct. The problem that the court has is that the email exchange attached to plaintiffs’ supplemental declaration is not the same as that which was submitted in the moving papers. Critically, it appears that underlying defense counsel had been told that the amount being sought was “several hundred thousand dollars” in addition to the amount plaintiffs had paid for the house (plus the upgrades). Further, defendant wrote to underlying defense counsel that if the concept of “full reimbursement” was not on the table, the parties ought to just mediate. That position was reiterated because defendant wanted to know if underlying defense counsel was ok on “concept and reimbursement.” The response a few seconds later from underlying counsel was “I told you yes. Get me the exact number and a breakdown.”
This is important because the court had been operating on the assumption that while underlying defense counsel had agreed to rescission (money paid in return for the property) including the $118,000 in upgrades, underlying counsel had never indicated a willingness to provide money for the other items that plaintiffs were demanding. Without some reason to believe that underlying defendants were willing to agree to such a deal, there was no reason to fault defendant here for insisting on mediation and breaking off the settlement discussion. And indeed, that was largely the point being made in the original moving papers. And that is also consistent with plaintiffs’ position at their deposition (although not necessarily in their opposing papers—another problem with the way plaintiffs’ counsel framed the case). But it turns out that the record was incomplete. Underlying defense counsel said “I told you yes” after defendant here said that the number would be “several hundred thousand dollars” higher than the rescission plus $118,000.
And this is no way to run a railroad. Defense counsel had an obligation of candor to the court to put the entire email exchange before the court, not just the part that looks good. But that said, defendant here could perhaps have reasonably assumed that plaintiffs’ counsel would tell the court whatever the court needed to know. Yet plaintiffs’ counsel did not complete or correct the record in the moving papers. Only in the supplemental declaration filed earlier this week—which defense counsel is right did go beyond that which the court authorized—did this information come out. That deprived defendant of the ability to respond.
The court therefore must deny the motion, because the evidence now in the record is troubling. However, because of the way this was done and the way the evidence came in, the court will not bar defendant from trying again and thereby dealing with the email exchange in its entirety. In the meantime, the trial date cannot be maintained—as the court indicated at the last hearing. The court’s busy calendar means that it could be a while before this case goes forward to trial, but the court will not disallow a summary judgment motion brought on the same grounds as was brought before. Because of the muddled nature of the current record, whole new papers are the way to go. The FSC and trial dates are VACATED. The court will set a new trial at the already-scheduled TSC.