Judge: Michael E. Whitaker, Case: 21SMCV00045, Date: 2024-05-22 Tentative Ruling
Case Number: 21SMCV00045 Hearing Date: May 22, 2024 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
May
22, 2024 |
|
CASE NUMBER |
21SMCV00045 |
|
MOTION |
Motion
for Summary Judgment/Summary Adjudication |
|
Defendant Baypost Builders Inc. |
|
|
OPPOSING PARTIY |
Plaintiff
H. Jewel Engstrom |
MOVING PAPERS:
REPLY PAPERS:
BACKGROUND
Plaintiff H. Jewel Engstrom, individually and as trustee of the
Engstrom Family Trust, (“Plaintiff”) filed the operative Complaint on January
1, 2021 against Defendants 1400 Linda Flora Associates, LLC and Bay Post
Builders, Inc. (“Baypost”), alleging five causes of action for (1) trespass;
(2) negligence; (3) private nuisance; (4) public nuisance; and (5) financial
elder abuse.
Plaintiff alleges construction work done on her uphill adjacent
neighbor’s property “repeatedly trespassed onto Plaintiff’s Property; have
constructed a roadway, retaining wall, cell phone tower and related
improvements on Plaintiff’s Property; and in excavating the 1400 Property, have
damaged Plaintiff’s Property.”
(Complaint ¶ 11.) Defendant 1400
Linda Flora Associates allegedly owns the neighboring uphill adjacent property
and Defendant Bay Post Builders, Inc. is alleged to be the general contractor
for the project.
Baypost has moved for summary judgment, or in the alternative, summary
adjudication, on the following issues:
1) The
expiration of the applicable statutes of limitation as to all causes of action
asserted against Baypost bar all causes of action, except the Fifth Cause of
Action for Financial Elder Abuse;
2) The
expiration of the applicable statute of limitations as to the First Cause of
Action for Trespass bars the cause of action as against Baypost;
3) Baypost
did not intentionally trespass on Plaintiff’s property as it was not on-the
project at the time most of the alleged acts constituting trespass occurred,
Baypost did not intentionally trespass on Plaintiff’s property as it was not
aware at the time that the landscaping and irrigation work by M&M was being
performed on Plaintiff’s property, Plaintiff’s property was not damaged by
Baypost's entry, and its condition was actually improved;
4) Defendant
Baypost did have any legal duty owed to Plaintiff related to the professional
services Baypost performed per agreement with the prior owner of the separate,
upslope property located at 1400 Linda Flora Drive:
a. Baypost
did not have any form of agreement with and was not paid by Plaintiff, or any
party to this action other than the prior owner of the separate, upslope
property;
b. Baypost
was retained only by the prior owner of the separate, upslope property and
performed no services of any kind under a separate agreement or understanding
with Plaintiff;
c. Baypost
was not the general contractor for any alleged work performed on Plaintiff’s
property;
d. Baypost
did not perform any excavation, construction, or other grading, and did not
design any aspect of the work, allegedly performed on Plaintiff’s property;
e. Baypost
did not have any responsibility for the means and methods of any of the alleged
work performed on Plaintiff’s property;
f. Baypost
was not the owner or occupier of, and did not have control over, the real
property involved in this action and cannot bear any liability for the
conditions on such property;
g. The
work that was performed exclusively on the upslope property located at 1400
Linda Flora Drive and managed by Baypost has performed as designed by
independent engineers and approved by the City of Los Angeles Department of
Building and Safety;
h. Plaintiff
cannot demonstrate any errors and/or omissions attributable to Baypost and
cannot establish that any alleged errors and/or omissions on the part of
Baypost have resulted in any demonstrable damages; therefore, Plaintiff’s
cannot assert a tort claim against Baypost; and,
5) Plaintiff
cannot demonstrate any errors and/ or omissions attributable to Baypost
and cannot establish that any alleged
errors and/or omissions on the part of Baypost have resulted in any
demonstrable damages; therefore, Plaintiff cannot assert a tort claim against
Baypost; and,
6) As
set forth above, Baypost did not owe a duty of care to Plaintiff, Baypost did
not take any action to appropriate, take, and/or retain any of Plaintiff’s real
and/or personal property, and Plaintiff cannot satisfy the elements for Elder
Abuse as against Baypost; therefore Baypost prevails on the Fifth Cause of
Action for Financial Elder Abuse.
Plaintiff opposes the motion and Moving Defendant replies.
EVIDENTIARY
OBJECTIONS
The Court rules as follows with
respect to Plaintiff’s evidentiary objections:
Declaration
of Ben Hamid Bayanfar
1.
Overruled
2.
Sustained
3.
Overruled
4.
Sustained
5.
Sustained
6.
Sustained
7.
Sustained
8.
Sustained as to the Google Earth photograph references,
Overruled as to the grubbed/denuded references.
9.
Sustained as to the Google Earth photograph references,
Overruled as to the roadway grading references.
10. Sustained
11. Sustained
12. Sustained
13. Sustained
14. Sustained
15. Sustained
16. Sustained
17. Sustained
18. Sustained
19. Sustained
20. Sustained
21. Sustained
22. Sustained
23. Sustained
24. Sustained
25. Sustained
26. Sustained
27. Sustained
28. Sustained
29. Sustained
30. Sustained
31. Sustained
32. Sustained
33. Sustained
34. Sustained
35. Sustained
36. Overruled
37. Overruled
38. Overruled
39. Sustained
40. Sustained
41. Sustained
42. Sustained
Exhibit
D: Sustained
Exhibit
E: Sustained
Exhibit
F: Sustained
Exhibit
G: Sustained
Exhibit
H: Sustained
Exhibit
J: Sustained
Exhibit
K: Sustained
Exhibit
L: Sustained
Exhibit
M: Sustained
Exhibit
N: Sustained
The Court rules as follows with respect to the Moving Defendant’s
objections to Plaintiff’s evidence:
20.5 Sustained
REQUEST FOR JUDICIAL NOTICE
Moving Defendant requests the Court to take judicial notice of (1)
Plaintiff’s Complaint in this matter; and (2) Baypost’s answer to the
Complaint.
Judicial notice may be taken
of records of any court in this state.
(Evid. Code, § 452, subd. (d)(1).)
Therefore, the Court may take judicial notice of the First Amended
Complaint and Baypost’s Answer thereto (Ibid.) However, “while courts are free to take
judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files. Courts may not take judicial notice of
allegations in affidavits, declarations and probation reports in court records
because such matters are reasonably subject to dispute and therefore require
formal proof.” (Lockley v. Law Office
of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875,
882 [cleaned up].)
Therefore, the Court takes
judicial notice of the existence and legal effect of the Complaint and
Baypost’s Answer, but not the truth of the allegations contained therein.
LEGAL STANDARDS – MOTION FOR SUMMARY
JUDGMENT/ADJUDICATION
“[T]he 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[.]
There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.”
¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850
(hereafter Aguilar).) ¿“[T]he party moving for summary judgment bears an
initial burden of production to make a prima facie showing of the nonexistence
of any triable issue of material fact; if he carries his burden of production,
he causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a
triable issue of material fact.” ¿(Ibid.; Smith v. Wells Fargo Bank,
N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar
apply to summary adjudication motions].)
Further, “the trial court
may not weigh the evidence in the manner of a factfinder to determine whose
version is more likely true. Nor may the
trial court grant summary judgment based on the court's evaluation of credibility.” (Aguilar, supra, 25 Cal.4th. at p. 840
[cleaned up]; see also Weiss v. People ex rel. Department of Transportation
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
A party may move for
summary adjudication as to one or more causes of action, affirmative defenses,
claims for damages, or issues of duty if that party contends that there is no
merit to the cause of action, defense, or claim for damages, or if the party
contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “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.”
(Ibid.) A cause of action has no merit if: (1) one or
more elements of the cause of action cannot be separately established, even if
that element is separately pleaded, or (2) a defendant establishes an
affirmative defense to that cause of action.
(See Code Civ. Proc., §
437c, subd. (n); Union Bank v. Superior
Court (1995) 31 Cal.App.4th 573, 583.)
Once the defendant has shown that a cause of action has no merit, the
burden shifts to the plaintiff to show that a triable issue of material fact
exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p.
583.) Additionally, in line with Aguilar,
“[o]n a motion for summary adjudication, the trial court has no discretion to
exercise. If a triable issue of material fact exists as to the challenged
causes of action, the motion must be denied. If there is no triable issue of
fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp.
v. Superior Court (2003) 114 Cal.App.4th 309, 320.)
DISCUSSION
1. ISSUES 1 & 2: STATUTE OF LIMITATIONS
Code of Civil Procedure
section 338 provides “An action for trespass upon or injury to real property”
must be brought within three years.
Moving Defendants contend that the most recent potential trespass or
injury to real property occurred from the repair of the January 2017 erosion
scar, which was completed on September 24, 2017, more than three years before
Plaintiff filed suit on January 11, 2021.
a. Baypost’s Evidence
In
support of its argument, Baypost has provided the following evidence:
· The first scar occurred on the Engstrom
property in or about January 2017 (UMF No. 5.)
· The solar tower did not exist when Baypost
left the project on or about the 31st of August 2018, and Baypost
knew nothing about the solar tower prior to viewing it in 2019 (UMF No. 81.)
Baypost also contends that the
repair was performed by Geoworks Engineering Group (UMF No. 49), and the repair
was completed by September 24, 2017 (UMF No. 90), but the Court has sustained
Plaintiff’s objections to this evidence.
Therefore, Baypost has not submitted admissible evidence in support of
these contentions.
Baypost also contends that two
additional scars occurred on the neighboring Aldave property in August 2018
(UMF No. 6), although the Court sustains Plaintiff’s objections to the evidence
submitted in support of that statement, and Baypost has provided admissible
evidence that a third scar occurred on the Aldave slope during heavy rains in
December of 2018 (UMF No. 8.)
Thus, Baypost has presented
evidence that the only damage to Plaintiff’s property occurred in January 2017,
but Baypost has not presented admissible evidence that the repair of that scar
was completed by September 24, 2017. As
such, Baypost has not met its initial burdens of production and persuasion that
it last entered or damaged Plaintiff’s property more than three years before
Plaintiff brought suit on January 11, 2021.
Therefore, the Court denies summary judgment as to issues 1 and 2.
2. ISSUE 3: INTENTIONAL TRESPASS
Baypost next contends it did
not commit intentional trespass because it was not on the project when most of
the trespass occurred, the trespass was not intentional because it was not
aware that the landscaping and irrigation work was being performed on Plaintiff’s
property; and Plaintiff’s property was not damaged by Baypost’s entry.
“Trespass is an unlawful
interference with possession of property.”
(Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) “Liability for trespass may be imposed for
conduct which is intentional, reckless, negligent or the result of an
extra-hazardous activity.” (Ibid.)
Because liability for trespass
may be imposed for reckless, negligent, or extra-hazardous activity, it does
not matter whether Baypost’s trespass was intentional or whether it damaged
Plaintiff’s property.
a. Baypost’s Evidence
With regard to Baypost’s
contention that it was not on the project when most of the trespass occurred, Baypost
concedes that it originally believed the Aldave and Engstrom slopes were
included in the project because they had been grubbed/denuded along with the
adjacent project slope (UMF No. 33), that it now knows portions of the slope
belong to the Aldave and Engstrom properties (UMF No. 34), that the ground
cover and irrigation were installed on the properties from September 16, 2015
to October 28, 2015 (UMF No. 39.)
However, Baypost argues that a
separate company, M&M Landscaping and Gardening Services, actually planted
the ground cover and installed the irrigation, pursuant to a direct agreement
between the owner of the upslope property and M&M (UMF No. 35-44.) Baypost further argues that yet another
company, Geoworks Engineering Group, Inc. did the work to repair the 2017 scar
on the Engstrom property (UMF No. 48-56.)
Finally, Baypost provides evidence that in 2017 it was retained as
general contractor for the construction of a 30-foot long retaining wall
extension on the Linda Flora property (UMF No. 57), which it contends was
staked by surveyor Steven Opdahl and constructed by EGM Construction, Inc. (UMF
Nos. 57-65), and that Baypost left the project on August 31, 2018 (UMF No. 67.)
The Court sustains Plaintiff’s
evidentiary objections to the evidence that M&M, Geoworks, Steven Opdahl,
and EGM Construction actually did the respective construction and repair
work. As such, Baypost has not provided
admissible evidence that it was not involved in the construction or repair work
that occurred on Plaintiff’s property.
Therefore, the Court denies
summary adjudication as to Issue 3.
3. ISSUE 4: DUTY
Baypost contends that the
Court should grant summary adjudication as to the second cause of action for
negligence, third cause of action for private nuisance, and forth cause of
action for public nuisance, on the grounds that Baypost owed Plaintiff no duty
of care.
The elements of a cause of
action for private nuisance are (1) an interference with plaintiff’s use and
enjoyment of plaintiff’s property; (2) the invasion of plaintiff’s interest
must be substantial, i.e. it caused plaintiff to suffer substantial actual
damage; and (3) the interference must also be unreasonable, i.e., of such a
nature, duration, or amount as to constitute an unreasonable interference with
the use and enjoyment of land. (Today's
IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022)
83 Cal.App.5th 1137, 1176.)
Similarly, the elements of a
cause of action for public nuisance are (1) a proscribed act; (2) interference
with the comfortable enjoyment of life or property; and (3) whether the act
affects a sufficient number of persons.
(People v. McDonald (2006) 137 Cal.App.4th 521, 535.)
Because duty is not an element
of the causes of action for private nuisance or public nuisance, resolution of
whether Baypost owed Plaintiff a duty of care will not dispose of these causes
of action.
With regard to negligence, “To
state a cause of action for professional negligence, a party must show (1) the
duty of the professional to use such skill, prudence and diligence as other
members of the profession commonly possess and exercise; (2) breach of that
duty; (3) a causal connection between the negligent conduct and the resulting
injury; and (4) actual loss or damage resulting from the professional
negligence.” (Giacometti v. Aulla,
LLC (2010) 187 Cal.App.4th 1133, 1137.)
Baypost argues there is no
duty because (1) Baypost had no written agreement with Plaintiff, did not
perform services for Plaintiff, and was not paid by Plaintiff; (2) Baypost was
hired by the prior owner of the upslope property and performed no services
under a separate oral agreement or understanding with Plaintiff; (3) Baypost
was not the general contractor for any work performed on Plaintiff’s property;
(4) Baypost did not perform any excavation, construction, grubbing/denuding, or
other grading and did not design any aspect of the work performed on
Plaintiff’s property; (5) Baypost was not responsible for the means and methods
of any of the alleged work performed on Plaintiff’s property; (6) Baypost was
not the owner or occupier and did not have control over the real property
involved in this action
As a threshold matter, as
discussed above, Baypost has not provided admissible evidence that it was not
involved in the work performed on Plaintiff’s property.
Further, “the lack of privity
of contract does not preclude imposition of a duty of care.” (Weseloh Family Ltd. Partnership v. K.L.
Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 164 (hereafter Weseloh).) Thus, the fact that there was no direct
contractual relationship between Baypost and Plaintiff does not automatically
mean that Baypost owed Plaintiff no duty as a matter of law.
Baypost finally argues that
because it was not the owner of and did not control the upslope property, there
can be no liability. In support, Baypost
cites to Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112,
113 (hereafter Isaacs) and Donnell v. California Western School of
Law (1988) 200 Cal.App.3d 715, 720 (hereafter Donnell). Both cases are inapposite.
In Isaacs, the Court
held that the insurer who participated in the decision to dismiss security
guards was not liable for plaintiff being assaulted in the hospital parking lot
because it did not own, possess, or control the hospital premises. Similarly, in Donnell, the court held
that the defendant owner of land adjacent to city property was not liable for criminal
assaults that occurred on the city-owned sidewalk, and the fact that defendant
could have placed lights on its own property to illuminate the sidewalk does
not create “control” sufficient for liability to attach.
By contrast, here, as general
contractor, Baypost was responsible for supervising the construction of the
retaining wall extension which may have caused Plaintiff’s damage. As such, Baypost has not met its initial
burdens of production and persuasion that there was no duty because there was
no privity of contract, because subcontractors actually performed the work, and
because Baypost did not own the upslope property.
Therefore, Baypost has not met
its initial burdens of production and persuasion that Plaintiff will be unable
to establish that Baypost owed her a duty.
As such, the Court denies summary adjudication as to Issue 4.
4. ISSUE 5: CAUSATION
a. Baypost’s Evidence
Baypost next argues that no
acts or omissions by Baypost caused Plaintiff’s harm. In support, Baypost provides the following
evidence:
· During Baypost’s inspection of the project in
September 2019, Bayanfar did not observe anything that indicated the retaining
wall was failing. (UMF 70.)
· During Baypost’s February 12, 2024 site
inspection of the Aldave and Engstrom slopes, Bayanfar did not observe anything
that indicated the retaining wall extension was not performing as
designed. (UMF No. 74.)
· At no time was Baypost advised by Linda
Flora, the geologist, the soils engineer, the structural engineer, or the City
of Los Angeles Department of Building and Safety that the retaining wall
extension was not performing and was failing.
(UMF No. 79.)
Therefore, Baypost has met its
initial burdens of production and persuasion that none of its acts or omissions
caused Plaintiff’s harm.
b. Plaintiff’s Evidence
In opposition, Plaintiff has
provided the expert declaration of Steve Norris, which indicates:
It is my opinion that the retaining wall
extension did not provide for proper control of stormwater runoff or drainage
from the areas behind it, and instead allowed for the collection of water in
the area of construction and diversion of runoff and associated loose debris
and materials around the edge of the wall and down the slope. The loose soil
material was deposited and collected below the portion of the Aldave slope that
had been cleared of brush, or “grubbed,” as part of the construction at the Linda
Flora property. It is my opinion that, during the rainy season of the winter of
2023-2024, the loose soil material, associated in part with Baypost’s work,
cascaded down the slope behind the Aldaves’ home, causing significant damage to
both the Aldave property and Ms. Engstrom’s property.
(Norris Decl. ¶ 5.)
Therefore,
Plaintiff has created a triable issue of material fact as to whether the
retaining wall extension caused harm to Plaintiff’s property.
As
such, the Court denies summary adjudication as to Issue 5.
5. ISSUE 6: ELDER ABUSE
“Financial abuse” of an elder
or dependent adult occurs when a person or entity does any of the following:
(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.
(2)
Assists
in taking, secreting, appropriating, obtaining, or retaining real or personal
property of an elder or dependent adult for a wrongful use or with intent to
defraud, or both.
(3)
Takes,
secretes, appropriates, obtains, or retains, or assists in taking, secreting,
appropriating, obtaining, or retaining, real or personal property of an elder
or dependent adult by undue influence, as defined in Section 15610.70.
(Welf. & Inst. Code, § 15610.30, subd.
(a).)
The
Complaint alleges:
13. Plaintiff is informed and believes that Defendants entered
Plaintiff’s Property, removed or compacted soil, landscaped the area, and
remediated the erosional scar, all without Plaintiff’s consent. Defendants’
excavation for the Project was not proper or usual excavation for the purpose
of construction. Plaintiff is informed and believes that Defendants entered
Plaintiff’s Property and performed or caused to be performed excavation and
other conduct on Plaintiff’s Property, including, without limitation: the entry
of workers and equipment onto Plaintiff’s Property; the removal and / or
compaction of soil thereon; the removal of native plants therefrom; and the
planting of landscaping thereon; all without any prior notice to Plaintiff and
without Plaintiff’s consent.
[…]
76. Plaintiff is older than 65 years of age.
77. Defendants have wrongfully taken Plaintiff’ Property as alleged
above.
[…]
79. Here, Defendants knew or should have known that their conduct in
taking and retaining Plaintiff's Property, would be harmful to Plaintiff and to
Plaintiff's interest in the Property.
80. Each Defendant's conduct, individually, and all of the Defendants'
conduct, collectively, was a substantial factor in causing Plaintiff's harm.
(Complaint ¶¶ 13, 76-77, 79-80.)
a. Baypost’s Evidence
Baypost contends that there is
no evidence that it took or assisted in taking Plaintiff’s property. In support, Baypost has provided the
following evidence:
· Trees and bushes were removed from a portion
of the upper Slope of the Aldave Property and the Engstrom Property prior to
August of 2012. (UMF No. 26.)
· The Aldave and Engstrom slopes had already
been grubbed/denuded when Baypost began acting as Project Manager of the
Project. (UMF No. 30.)
· The plans Baypost received for the planting
of the ground cover specified work in the grubbed/denuded area of what Baypost
now knows to be the Aldave and Engstrom property. (UMF No. 34.)
· Linda Flora Associates entered into a
contract with M&M Landscaping and Gardening Services to plant ground cover
and install jute netting and irrigation on a portion of the Aldave and Engstrom
Properties that had been grubbed/denuded.
(UMF No. 35.)
· The retaining wall extension was constructed
entirely on the uphill property. (UMF
No. 58.)
· The solar tower did not exist when Baypost contends
it left the project on or about the 31st of August 2018, and Baypost knew
nothing about the solar tower prior to viewing it in 2019. (UMF No. 81.)
· Prior
to leaving the Project, Baypost never observed plans for the solar tower and
Baypost was never advised that a solar tower was being considered for any
reason. (UMF No. 82.)
· Baypost
was not involved with the design, construction, placement or installation of
the solar tower. (UMF No. 83.)
· At
no time did Baypost take, hide, appropriate, obtain or retain the Engstrom
slope. (UMF No 87.)
Therefore, Baypost has met its
initial burdens of production and persuasion that it did not take anything from
Plaintiff’s property.
b. Plaintiff’s Evidence
In opposition, Plaintiff cites
to the evidence demonstrating that Baypost was the general contractor, and the
expert opinion of Steve Norris, indicating that the poor drainage for the
retaining wall extension caused the mudslide to bring debris onto Plaintiff’s
property.
But none of this evidence
demonstrates that Baypost or any of its agents took anything from Plaintiff’s
property. The shrubs that had been
denuded were taken before Baypost began work on the project, and the rest of
Plaintiff’s damages allege trespassing onto Plaintiff’s property, placing items
on Plaintiff’s property (including ground cover, part of an irrigation system, and
a cell phone tower), remediating the erosion scar, and causing mud and debris
to slide onto Plaintiff’s property.
Therefore, Plaintiff has not met
her burden of demonstrating a triable issue of material fact that Baypost took
anything from Plaintiff’s property. As
such, the Court grants summary adjudication as to Issue 6.
CONCLUSION AND ORDER
Therefore, the Court grants in part and denies in part Baypost’s
Motion for Summary Adjudication. Having
found Baypost met its initial burdens of production and persuasion that it did
not take anything from Plaintiff’s property, and Plaintiff has not created any
triable issue of fact that Baypost did take anything, the Court grants summary
adjudication as to Issue 6.
Having found Baypost failed to meet its initial burdens of production
and persuasion that the statute of limitations has expired, that it did not
intentionally trespass, or that it did not owe a duty of care to Plaintiff, the
Court denies summary adjudication as to Issues 1-4.
Having found that Baypost met its initial burdens of production and
persuasion, but that Plaintiff created triable issues of material fact as to
whether Baypost’s actions or omissions caused Plaintiff’s damages, the Court
denies summary adjudication as to Issue 5.
Because the Court denies summary adjudication as to Issues 1, 2, 3, 4,
and 5, the Court similarly denies summary judgment.
Baypost shall provide notice of the Court’s ruling and file the notice
with a proof of service.
DATED: May 22, 2024 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court