Judge: Melvin D. Sandvig, Case: 21CHCV00341, Date: 2023-05-24 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 21CHCV00341    Hearing Date: May 24, 2023    Dept: F47

Dept. F47

Date: 5/24/23                                                                 TRIAL DATE: 11/13/23

Case #21CHCV00341

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

Motion filed on 3/3/23.

MOVING PARTY: Defendant Daniel Salazar

RESPONDING PARTY: Plaintiff/Cross-Defendant Oscar Padilla dba La Hacienda Concrete

NOTICE: ok

RELIEF REQUESTED: An order granting summary judgment in favor of Defendant and against Plaintiff/Cross-Defendant.  Alternatively, Defendant requests summary adjudication in Defendant’s favor of the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th and/or 7^th causes of action in Plaintiff’s complaint. 

RULING: The motion is denied in its entirety.

FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY

This action arises out of Plaintiff Oscar Padilla dba Hacienda Concrete’s (Plaintiff) claim that Defendant Daniel Salazar Construction (Defendant) failed to pay all sums due to Plaintiff under an oral subcontract agreement.  On 4/30/21, Plaintiff filed this action for: (1) Breach of Contract, (2) Open Book Account, (3) Account Stated, (4) Intentional Misrepresentation, (5) Negligent Misrepresentation, (6) Fraud and (7) Unjust Enrichment.  On 10/20/21, Defendant answered the complaint and filed a cross-complaint against Plaintiff for breach of contract. 

On 7/18/22, Defendant filed and served his first motion which sought an order granting summary judgment in favor of Defendant and against Plaintiff on Plaintiff’s complaint, or in the alternative, summary adjudication in Defendant’s favor of the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th and/or 7^th causes of action in Plaintiff’s complaint.  On 10/3/22, this Court denied Defendant’s first motion for summary judgment, or in the alternative, summary adjudication.  (See 10/3/22 Minute Order).  

On 3/3/23, Defendant filed and served the instant motion which, again, seeks order granting summary judgment in favor of Defendant and against Plaintiff/Cross-Defendant.  Alternatively, Defendant requests summary adjudication in Defendant’s favor of the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th and/or 7^th causes of action in Plaintiff’s complaint.  Plaintiff has opposed the motion.    

ANALYSIS

CCP 437c(f)(2) limits a party’s ability to renew a motion for summary judgment.  See Schachter (2005) 126 CA4th 726, 732-740; Bagley (1999) 73 CA4th 1092, 1093, 1096-1097.

CCP 437c(f)(2) provides, in relevant part:

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” 

See also CCP 1008(b).

Here, Defendant has failed to address the requirements of CCP 437c(f)(2) and/or CCP 1008(b).  (See Motion, generally; Khalilpour Decl., generally).  Defendant makes no effort to indicate that there have been any newly discovered facts or circumstances or a change of law which would support this Court’s reconsidering its denial of  Defendant’s prior motion for summary judgment and/or adjudication which sought the same relief based on the same arguments.  The only “new” evidence offered in support of the instant motion is Plaintiff’s deposition testimony.  (See Defendant’s Compendium of Evidence, Ex.U).  However, Defendant does not explain why Plaintiff’s deposition could not have been taken before Defendant filed the prior motion.  Additionally, Defendant fails to mark the deposition testimony in a manner that calls attention to the relevant portions as required.  See CRC 3.1116(c).  Rather, Defendant has attached the entire 130 deposition transcript without highlighting any specific portions of same.  More importantly, Defendant does not cite to Plaintiff’s deposition transcript in support of the motion.    

Despite the Court noting this procedural defect in Defendant’s prior motion, Defendant has, again, failed to set forth the alternative issues for summary adjudication verbatim in the notice of motion and separate statement as required by CRC 3.1350(b) and (h).  (See 10/3/22 Minute Order, pp.1-2; Notice of Motion; Defendant’s Separate Statement).

Based on the foregoing, the Court finds it unnecessary to rule on Defendant’s Request for Judicial Notice. 

CONCLUSION

Based on the foregoing, the motion is denied.