Judge: Nick A. Dourbetas, Case: 2021-01208684, Date: 2022-07-22 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Plaintiff U.S. Bank NA dba U.S. Bank Equipment Finance moves for summary judgment against Defendants Laila Elkeeb, M.D., Inc. dba Focus Wellness and dba Focus Dermatology, Laila Elkeeb, and Tarek Tumiya.

A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A motion for summary judgment asks the court to determine that the entire action has no merit (or that there is no defense) and to terminate the action without the necessity of a trial. [Citation.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 10:1.) By contrast, “[a] motion for summary adjudication asks the court to adjudicate the merits of a particular cause of action, affirmative defense, issue of duty or claim for damages, including a punitive damage request. [Citation.]” (Ibid.)

The motion for summary judgment is DENIED. One, the notice of motion is defective. The notice of motion seeks “summary judgment on the Complaint.” [ROA 41] However, the operative complaint is the FAC. (See Code Civ. Proc., § 1010 [notice must state “the grounds upon which it will be made, and the papers, if any, upon which it is to be based; Homestead Sav. v. Superior Court (1986) 179 Cal.App.3d 494, 498-499 [when a notice of motion seeks only summary judgment, a court may not summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion].) Two, the notice seeks summary judgment only, but the motion only addresses the first cause of action for breach of contract and fails to address the second cause of action for possession of property. There is no indication in the record that Plaintiff dismissed the second cause of action. Summary judgment cannot be had because Plaintiff did not move on all the causes of action.

Plaintiff to give notice of ruling.