Judge: Martha K. Gooding, Case: 2020-01129890, Date: 2022-08-22 Tentative Ruling
Motion for Summary Judgment and/or Adjudication
Cross-Defendant Nick Dutra’s motion for summary adjudication as to the 3rd cause of action for conversion and claim for punitive damages in the First Amended Cross-Complaint (“FACC”) filed by Grace A.C. Dearmin is GRANTED.
Cross-Defendant’s objections 1 and 2 are sustained. Cross-Defendant’s objection 3 is overruled.
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.)
Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].) Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
3rd cause of action for conversion
The FACC brought by Grace A.C. Dearmin (executor of the estate of Thomas Dearmin) alleges that Nick Dutra (along with other Cross-Defendants) converted the assets of the Estate of Thomas Dearmin to their own companies.
The elements of conversion are: “(1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)
Grace Dearmin admitted at deposition that she has no knowledge to support her claims and cannot refute Dutra’s testimony that he did not convert any assets. (UMF 20-35.) The following are relevant excerpts from Grace’s deposition:
Q: How do you know Mr. Dutra
took assets of the estate, specifically?
A. I don’t know
Q: You are not personally aware of any facts that indicate Mr. Dutra took assets of the estate?
A. I don’t know
Q: You’re not aware that [Dutra] specifically took anything that belonged to your dad, correct?
A. I don’t know
Q: You have no knowledge of that, right?
A. I have no knowledge of anything, no.
(SUF 22; Cross-Defendant’s Ex. B, Dearmin Depo, at 98:3-5; 100:15-21; 101:8-14.)
In addition, in her written discovery responses, she failed to identify any facts, witnesses, documents or other evidence that would show that Dutra committed or participated in any act of conversion of property of the Estate of Thomas Dearmin. (UMF 20-37.)
Cross-Complainant denied all of Dutra’s RFAs that were propounded on her asking her to admit that she is not aware of any facts indicating that Dutra is liable for conversion. (UMF 20.) However, in response to the concurrently-served Form Interrogatory 17.1 (asking her to state all facts, witnesses and documents supporting her denials), she only responded as follows: “From what Grace A.C. Dearmin knows, after Thomas Carr Dearmin died, Nick Dutra was involved in moving the physical and intellectual property assets of SCS Energy Solutions to SCS Lighting Solutions and other entities.” (UMF 21.)
In Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, the Court held that a defendant moving for summary judgment could “rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Id. at 590.)
As in this matter, in Union Bank, the defendant moving for summary judgment relied on the plaintiff’s responses to requests for admission and form interrogatory 17.1 as the evidentiary basis for its separate statement of undisputed facts. The plaintiff denied the RFAs asking it to admit defendant did not commit fraud. In response to 17.1 regarding those RFAs, the plaintiff stated: “Plaintiffs believe that Union Bank knowingly and fraudulently took the assignment of all the assets of NMR Investors Fund I to secure the loan it made with United Medical Leasing Company, Inc. [¶] Plaintiffs reserve the right to further respond to this interrogatory.” (Id. at 578.)
The Court of Appeal reversed the lower court’s denial of the summary judgment motion, finding that the plaintiff’s factually devoid discovery responses shifted the burden of proof on summary judgment. (Id. at 580–581.)
In Cross-Complainant’s opposition, she focuses on evidence showing that Dutra was an employee/officer of SCS Lighting Solutions. Cross-Complainant argues that “Nick Dutra was responsible to protect the assets of SCS Lighting Solutions, Inc., [and] [h]e did not do that.” (Opposition at pg. 2.) Cross-Complainant submits no evidence with her opposition that is specific to the conversion claim. Nor does she cite to any legal authority. She purports to dispute several of Cross-Defendant’s facts in her separate statement, but her alleged facts in dispute are not material to the issues and contain no citations to any evidence.
Accordingly, the Court finds that Cross-Defendant has shifted his burden using his own declaration and Cross-Complainant’s factually devoid discovery responses as evidence, pursuant to Union Bank v. Superior Court (1995) 31 Cal.App.4th 573. Because Cross-Complainant has not set forth any evidence to show there are any disputed material issues of fact, the motion is GRANTED as to the conversion claim.
Civil Code section 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code § 3294(c)(1).)
Cross-Complainant only alleges the 3rd cause of action for conversion in her FACC against Dutra. Therefore, because the motion is granted as to the 3rd cause of action, the claim for punitive damages has no basis and Cross-Complainant is entitled to summary adjudication.
Cross-Defendant shall give notice.