Judge Ralph C. Hofer, Case 21GDCV00845 2023-04-07 Tentative Ruling

Judge: Ralph C. Hofer, Case: 21GDCV00845, Date: 2023-04-07 Tentative Ruling

Case Number: 21GDCV00845 Hearing Date: April 7, 2023 Dept: D

TENTATIVE RULING

Calendar: 3

Date: 4/7/2023

Case No: 21 GDCV00845 Trial Date: May 8, 2023

Case Name: CAC Motors dba ZR Investment v. X3 AST Consulting, Inc., et al.

MOTION FOR SUMMARY

JUDGMENT/ADJUDICATION

Moving Party: Plaintiff CAC Motors dba ZR Investment

Responding Party: Defendants X3 AST Consulting, Inc., Sleiman Timan and

Marques Johnson

RELIEF REQUESTED:

Summary adjudication in favor of CAC Motors on the first, second, third, fourth, and fifth causes of action of the complaint, and adjudication of the alter ego allegations of the complaint.

CAUSES OF ACTION: from Complaint

1) Negligence Per Se (Vehicle Code section 5753)

2) Conversion

3) Breach of Contract

4) Fraud

5) False Promise

6) Restitution, Unjust Enrichment

7) Breach of Implied Warranty of Fitness for a Particular Purpose

8) Negligent Hiring, Retention and Supervision

9) Negligence—Vicarious Liability

SUMMARY OF FACTS:

Plaintiff CAC Motors dba ZR Investment (Plaintiff) brings this action against defendants X3 AST Consulting, Inc. (X3 AST Consulting), Sleiman A. Timani, and Marques Johnson, alleging that plaintiff is engaged in the automobile export business, and entered into a business relationship with defendant X3 AST Consulting pursuant to which plaintiff would request specific vehicles and X3 AST Consulting would locate, purchase and deliver those vehicles to plaintiff.

Plaintiff alleges that defendant Timani, who is associated with X3 AST Consulting, contacted plaintiff and induced it to transfer money to defendants to secure a 2020 Mercedes Benz GL450, which was not in defendants’ possession. The complaint alleges that after plaintiff transferred the funds for the vehicle, defendants failed to satisfy the security interest associated with the vehicle in order to authorize the release of the lienholder, so that the vehicle was repossessed by Mercedes Benz Financial Services (Mercedes Financial).

ANALYSIS:

Procedural

Summary Judgment

This motion is captioned in the Notice, “Plaintiff CAC Motors’ Notice of Motion and Motion for Summary Judgment.” The notice itself, however, does not request Summary Judgment, but “Summary Adjudication,” and does not address all of the causes of action of the complaint. Under these circumstances the court cannot consider nor grant summary judgment.

Under CCP § 437c(c)

“(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

It is held that a court may not summarily adjudicate claims or defenses unless requested in the notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal. App.3d 494, 498. Where only certain claims or defenses are raised, the court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.

The Notice fails to request summary judgment, and the Notice seeks adjudication of only five of the nine causes of action, and an issue of alter ego liability. Even if established, this would not entitle plaintiff to summary judgment in this action.

The court will proceed to consider the motion as a motion for summary adjudication of only the issues as stated in the Notice.

Memorandum Exceeding Page Limits

As argued in the opposition, the memorandum in support of the motion exceeds the statutorily permitted page limit.

CRC Rule 3.1113(d) provides:

“In a summary judgment or summary adjudication motion, no opening or responding memorandum of points and authorities shall exceed 20 pages.”

The Rule provides that ex parte application may be made to file a longer memo. Under subdivision (g), “A memorandum that exceeds the page limits of these rules shall be filed and considered in the same manner as a late-filed paper.”

CRC Rule 3.1300(d) permits the court, in its discretion, to consider a late-filed paper:

“No paper may be rejected for filing on the ground it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order shall so state.”

Here, the memorandum in support of the motion submitted by plaintiff begins after the tables on page 7, and extends to page 36, so is 30 pages long. This is ten pages longer than the 20-page limit. Plaintiff did not apply ex parte to file a memorandum exceeding the page limits. Defendants in opposition argue that this has forced defendants to condense their briefing. Plaintiff in the reply concedes that the memorandum exceeds the page limit.

The memorandum may be considered late, and the court would be within its discretion to refuse to consider the memorandum, or to at least not consider any material outside the twenty page limit. However, the court recognizes that defendants have timely filed substantive opposition which appears to address the entire moving memorandum. The court will hear argument concerning whether under the circumstances defendants would like the opportunity to file a supplemental memorandum of ten pages in length. The request in the reply that plaintiff be permitted to continue the hearing and file a condensed brief is denied.

Memorandum—No Reference to Evidence

The court also notes that despite the significant overlength of the memorandum of points and authorities, the memorandum does not set forth a single citation to supporting evidence, or cross-reference a single fact included in the separate statement.

Under CRC Rule 3.1113(b), governing the content of a memorandum in support of a motion:

“The memorandum must contain a statement of the facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”

There is no statement specifying any of the evidence relied upon, making it extremely difficult for the court to confirm that the facts represented in the memorandum are in fact supported by evidence. Plaintiff is cautioned that in the future all supporting papers must comply with the statutes, rules and procedures governing this litigation.

Separate Statement

The Separate Statement filed by plaintiff in support of the motion also fails to comply with the requirements for a separate statement in several respects.

First, to the great inconvenience of the court, the separate statement sets forth each of the issues to be summarily adjudicated as set forth in the notice of motion, in sequence, followed by eighteen pages of purported facts, without specifying which of those facts support which of the purported issues. The issues are somewhat distinct, and, since the motion is brought by plaintiff, this makes it extremely difficult for the court to determine if plaintiff has met its initial burden of establishing each element in support of each cause of action.

Under CRC Rule 3.1350(b):

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

Under subdivision (d):

“(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.”

Subdivision (h) provides a format for separate statements which “must” be followed, and shows the facts set forth immediately following the “ISSUE” identified.

The separate statement here does not state each supporting material fact to be without dispute “with respect to the cause of action” which is the subject of each adjudication. This presentation makes the motion very difficult to analyze.

Second, as pointed out in the opposition, the separate statement does not number the purported undisputed facts beyond number 8. This procedural posture leaves seventeen pages of facts which are not numbered.

As defendants argue, this fails to comply with CRC Rule 3.1350 (d)(3), which requires, in connection with a separate statement submitted in support of a motion for summary judgment, “The statement must state in numerical sequence the undisputed material facts in the first column…”

The separate statement here does not state the facts in “numerical sequence” beyond the first eight facts. Defendants in response to the separate statement, to defendants’ inconvenience, have in fact numbered the facts, which extend to No. 144. Plaintiff in the reply papers has adopted this numbering.

Third, defendants also point out that there are various “facts” set forth in plaintiff’s separate statement which are not followed by citation to evidence.

CRC Rule 3.1350 (d)(3) goes on to provide, in pertinent part:

“The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

(Emphasis added).

The separate statement fails to cite evidence in support of several facts, including UMF Nos. 1, 2 and various facts at pages 10, 11, 12, 14, 15, and 20 of plaintiff’s separate statement.

Under CCP § 437c(b)(1), governing the supporting papers on a motion for summary judgment: “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”

The opposition argues that the motion should be denied outright on the ground the separate statement fails to comply with the procedural requirements.

The numerous procedural deficiencies in the moving papers suggest that the court would be within its discretion to refuse to consider the non-conforming papers, and the motion itself. The court recognizes that appellate courts have been reluctant to affirm the disposal of a motion for summary judgment on purely procedural grounds such as these, particularly where a separate statement in opposition to a motion for summary judgment sufficiently indicates which proposed material facts are disputed, and the result would be to grant a motion for summary judgment, in effect, imposing a terminating sanction. See Parkview Villas Association, Inc. v. State Farm Fire and Casualty Co. (2005, 2nd Dist.) 133 Cal.App.4th 1197, 1214-1216. The Second District in Parkview suggested that the trial court should permit the submission of an appropriately formatted separate statement in most circumstances. The Second District, however, noted that in cases where a motion for summary judgment is denied for failure of the moving party to submit an appropriate separate statement, the trial court’s discretionary decision under CCP § 437c(b)(1) is given greater deference:

“the trial court's exercise of the discretion authorized by section 437c to deny a motion for summary judgment, which simply means the case will proceed to trial, is more readily affirmed than a decision to grant the motion based on a curable procedural default, which deprives the opposing party of a decision on the merits.”

Parkview Villas, at 1213.

The court deny summary judgment based on this argument concerning the deficiencies in the plaintiff’s separate statement. The moving party has submitted a separate statement which fails to comply with several requirements, and there has been an objection on this ground. However, defendants have remedied the numbering problem with plaintiff’s separate statement. With respect to the failure to cite to evidence, the court does not ordinarily consider the facts as stated in a separate statement as facts but considers only the evidence offered in connection with the motion, and the reasonable inferences deduced from that evidence. The court can engage in that exercise here, even though, as discussed above in connection with the memorandum, plaintiff has not clearly directed the court to specific supporting evidence.

CCP § 437c(c) governing motions for summary judgment provides, in pertinent part:

“In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence…”

The court reluctantly considers the separate statement, but only considers the evidence, and reasonably deducible inferences therefrom, as permitted. It should be noted that the court is not relying on any unsupported statements in the separate statement or the memorandum. Again, the request in the reply to continue the matter so that plaintiff can submit an appropriate separate statement is denied.

The court’s substantive analysis also is by reference to the Undisputed Material Facts (UMFs) by number as assigned in defendants’ responsive separate statement.

Untimely Reply

Plaintiff’s reply papers are untimely.

Under CCP §1005(b):

“All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”

(emphasis added).

Again, under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”

Here, there was a court holiday on March 31, 2023, the date reply would normally have been due, so five court days prior to the hearing on April 7, 2023 was March 30, 2023, which was when the reply was due. The reply was served on April 3, 2023, and filed with the court on April 3, 2023, at 11:57 PM, only four court days prior to the hearing, so was one court day, and four calendar days, late, to the inconvenience of the court. The court has nevertheless considered the untimely reply, but plaintiff is again cautioned that the court in the future may refuse to consider late-filed papers.

Substantive

Under CCP § 437c(p)(1) a plaintiff “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “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.”

Plaintiff CAC Motors dba ZR Investment seeks summary adjudication against defendants X3 AST Consulting, Inc., Sleiman Timan and Marquez Johnson on the first through fifth causes of action, evidently arguing that plaintiff can meets its burden as to each element of its causes of action entitling plaintiff to judgment on the causes of action. The notice of motion also seeks summary adjudication that the individual defendants are liable based on an alter ego theory. The memorandum also argues that plaintiff is entitled to an award of punitive damages as a matter of law.

ISSUE 1: CAC Motors (Plaintiff) is entitled to summary adjudication in its favor on the First Cause of Action in the Complaint for Negligence and Breach of Statutory Duty against X3 AST CONSULTING, INC., SLEIMAN TIMAN and MARQUES JOHNSON (collectively referred to as Defendants) as Defendants failed or neglected to deliver the certificate of ownership to the Plaintiff, pursuant to the California Vehicle Code §5753 and failed to pay the statutory damages mandated by section (e) of the California Vehicle Code §5753.

The first cause of action as stated in the complaint is for Negligence Per Se, alleging that due to plaintiff’s compliance with the agreement between the parties and pursuant to Vehicle Code section 5753 (a), defendants had a duty to deliver the certificate of ownership to plaintiff, but failed to do so, by neglecting to properly endorse, date, and deliver the certificate of ownership to plaintiff. [Complaint, paras. 72-74].

Under Evidence Code section 669, the violation of a statute may give rise to a negligence claim:

“(a) The failure of a person to exercise due care is presumed if:

(1) He violated a statute, ordinance, or regulation of a public entity;

(2) The violation proximately caused death or injury to person or property;

(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

(b) This presumption may be rebutted by proof that:

(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or

(2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.”

The Second District recognizes that generally, “the doctrine of negligence per se is not a separate cause of action but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-738, quotations, citations omitted.

To establish a cause of action for negligence, plaintiff must plead and prove the following elements: Defendant owed a legal duty of care to plaintiff; defendant breached the duty (negligent act or omission); plaintiff was injured as a result (proximate or legal cause); and damages. Palmer v. Crafts (1936) 16 Cal.App.2d 370, 375; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.

The cause of action is based on alleged violation of the statute Vehicle Code section 5753, which provides, in pertinent part:

“(a) It is unlawful for any person to fail or neglect properly to endorse, date, and deliver the certificate of ownership and, when having possession, to deliver the registration card to a transferee who is lawfully entitled to a transfer of registration….

(c)(1) Within 15 business days after receiving payment in full for the satisfaction of a security interest and a written instrument signed by the grantor of the security interest designating the transferee and authorizing release of the legal owner's interest, the legal owner shall release its security interest and mail, transmit, or deliver the vehicle's certificate of ownership to the transferee who, due to satisfaction of the security interest, is lawfully entitled to the transfer of legal ownership.

(2) If a lease provides a lessee with the option to purchase the leased vehicle, within 15 business days after receiving payment in full for the purchase, and all documents necessary to effect the transfer, the lessor shall mail, transmit, or deliver the vehicle's certificate of ownership to the transferee, who, due to purchase of the vehicle, is lawfully entitled to the transfer of legal ownership.”

The moving papers set forth the elements of negligence, as well as the negligence per se codification in Evidence Code section 669, and also cites to authority under which, “The burden is on the proponent of a negligence per se instruction to demonstrate that these elements are met.” Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596, citation omitted.

Plaintiff then argues that California Vehicle Code section 11709.4 requires a dealer to satisfy the security interest associated with any vehicle within 21 days after acquiring such vehicle, and argues that defendants are “dealers” as defined in Vehicle Code section 285, subjecting them to Vehicle Code section 11709.4.

As pointed out in the opposition, the complaint does not mention this section, so that any liability based on that particular statute would not be available to plaintiff on summary adjudication. [See Complaint, paras. 72-78].

The issues on a motion for summary adjudication are ordinarily framed by the pleadings. In Lee v. Bank of America (1994) 27 Cal.App.4th 197, the court of appeal affirmed a trial court’s order granting summary judgment in favor of an employer in a wrongful termination action, based on the bar of the statute of limitations. The court of appeal determined that the trial court appropriately had limited its consideration to an amended complaint, which alleged only wrongful termination, despite the employee’s argument that the facts in that matter also supported a claim for wrongful demotion, arguably not time barred, and as alleged in the employee’s original complaint.

The court of appeal held:

“on summary judgment the question is whether the undisputed facts establish that the moving party is entitled to prevail on the causes of action articulated by the complaint. If the facts will support causes of action not articulated by the complaint, it is incumbent on the pleader to make some request to amend so that the pleading is adequate. In the absence of such a request, the court is under no duty to inquire whether there are causes of action or defenses inherent in the facts but not articulated by the pleading. (See Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605, 611 [163 Cal.Rptr. 477], quoting Krupp v. Mullen, supra, 120 Cal.App.2d 53, 56-57.)”

Lee, at 216, footnote omitted.

In any case, the motion argues that defendant violated Vehicle Code section 5753, which is alleged in the complaint, by failing or neglecting to deliver the certificate of ownership to the plaintiff. The motion also argues that the time limits imposed for transfer of title were specifically enacted to protect the interests of persons like plaintiff where there is a delay in transferring clear title, which prevents the reregistering or future sales transaction with respect to a vehicle. [Senate Bill 237, Senate Judicial Committee, 2003-2004, hearing date April 8, 2003, Comment p. 3].

Plaintiff also argues that the breach of the statutory requirement was a factor which proximately caused plaintiff to suffer loss of his property. Plaintiff argues that had defendants complied with their mandated requirements, providing plaintiff with the certificate of ownership, plaintiff would become the only party who lawfully could exercise control over the vehicle, eliminating the possibility of repossession of the vehicle, such as took place here. Plaintiff also indicates that defendants refused to comply with plaintiff’s written demand for payment of the statutory damages mandated by Vehicle Code section 5753 (e) for more than sixty days following the demand.

Vehicle Code section 5753(e) provides:

“(e) A legal owner or lessor that fails to satisfy the requirements of subdivisions (c) and (d), shall, without offset or reduction, pay the transferee twenty-five dollars ($25) per day for each day that the requirements of subdivisions (c) and (d) remain unsatisfied, not to exceed a maximum payment of two thousand five hundred dollars ($2,500). If the legal owner or lessor fails to pay this amount within 60 days following written demand by the transferee, the amount shall be trebled, not to exceed a maximum payment of seven thousand five hundred dollars ($7,500), and the transferee shall be entitled to costs and reasonable attorneys’ fees incurred in any court action brought to collect the payment. The right to recover these payments is cumulative with and is not in substitution or derogation of any remedy otherwise available at law or equity.”

The evidence submitted with the moving papers consists of declarations of Pavel Kouprine, the attorney for plaintiff, and Patrick Lee, the principal for plaintiff, along with documentary exhibits. The declarations indicate that the vehicle was paid for by plaintiff, and that possession of the vehicle was transferred to plaintiff’s agent/transporter. [UMF Nos. 22, 23, 30, 37, and evidence cited, Lee Declaration, paras. 41, 42, 67, 73].

Plaintiff also submits evidence that on December 18, 2019, plaintiff received a Notice of Stored Vehicle (NSV) from CU Transport, indicating that the vehicle had been towed away by CHP/FEAR on December 16, 2019 from CU Transport as the location towed from with the Reason for Stop given as “2805VC Inspection” and the Storage Authority/ Reason being “22651(C)VC.” [UMF Nos. 52, 53 and evidence cited, Lee Decl., paras. 89, 90, Ex 6]. This would mean that plaintiff’s transporter or defendant, at plaintiff’s instruction, had transported the vehicle to CU Transport, for the vehicle to be transported overseas. Vehicle Code section 2805, referenced in the NSV, permits inspection by the CHP for “the purpose of locating stolen vehicles.” Vehicle Code section 22651 (C) permits a peace officer to remove a vehicle where a report has been made that the vehicle is stolen. This evidence would support an inference that a cause of the vehicle falling out of plaintiff’s possession was that there was a government raid on CU Transport with respect to vehicles which were being improperly exported without certificates of title.

The moving papers also include evidence that the Lease Agreement pursuant to which defendant Johnson leased the vehicle for transfer to plaintiff includes a Statement of Fact Re: Export Prohibition, which certified that the subject vehicle would not be exported from North America for a period of twelve months from the date of execution. [UMF Nos. 13, 14, and evidence cited, Kouprine Decl., para. 4, Ex. 4].

This evidence suggests that a contributing factor to plaintiff’s loss of the vehicle was plaintiff’s own conduct in having the vehicle transported to and held at CU Transport for export, when plaintiff did not have a certificate of title in the subject vehicle, so that the vehicle appeared to law enforcement to have been stolen, and, in addition, the vehicle was subject to an export prohibition during the period in question. Plaintiff submits substantial evidence showing that it was inquiring regularly concerning the state of title while the vehicle was being kept at CU Transport, and had been informed repeatedly that a certificate of title had not yet issued to defendants. [See UMF Nos. 45-51, and evidence cited, Lee Decl., paras. 79-88]. The Lee Declaration itself reporting that Mercedes Financial was holding title to the vehicle, and defendant was representing it had not yet obtained title from Mercedes Financial, supports a reasonable inference that defendant did not in fact withhold title from plaintiff in violation of the statute.

CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718.

Here, there are competing inferences reasonably deducible from the evidence that plaintiff had comparative fault with respect to any negligence claim. Hence, the damages allegedly suffered are not solely attributable to defendants and are recoverable in full against the defendants. Hence, there is the reasonable inference that defendants did not violate any statute to establish a negligence claim.

Plaintiff has raised its own triable issues of material fact with its moving papers, so that summary adjudication of this issue is not appropriate.

The moving papers are also not clear on the issue of the damages being claimed in connection with this cause of action. The memorandum in connection with this cause of action indicates that the amount of plaintiff’s losses is $59,877.51, calculated as the total amount transferred by plaintiff to defendants for the vehicle, which was $99,877.51, less $40,000 returned by defendants, in actual damages, but plaintiff also appears to seek $7,500 in statutory damages, as well as costs, attorney’s fees, and punitive damages. [See Memorandum, pp. 17:7-10, 18:3-12, 19:7-12, 21-28, 20:1-2]. The Conclusion section of the memorandum, in connection with this cause of action and three other causes of action, expressly seeks actual damages, statutory damages, some of which are to be supported by evidence to be submitted later, as well as emotional distress damages, pre-judgment interest, punitive damages, repayment of two awards of monetary discovery sanctions, and orders prohibiting defendants from engaging in certain conduct.

Specifically, the memorandum states:

“Plaintiff has established each and every element for its Causes of Action for Negligence, Conversion, Breach of Contract and Fraud against each of the Defendants. Accordingly, Plaintiff is entitled to summary adjudication in his favor and against each of the Defendants, as to the First, Second, Third, and Fourth Causes of Action in the Complaint; in that CAC Motors is entitled to:

• Actual damages in the amount of $59,877.51;

• Statutory damages in the amount of $7,500.00 and an award of costs including attorney fees as provided by California Vehicle Code §5753. Plaintiff requests a leave to file a declaration of costs and attorney fees within 5 days following an order granting this request;

• Damages related to emotional distress related to Defendant’s conversion in the amount of $59,877.51 or the amount this Court finds just and reasonable;

• Pre-judgment interest of 10%, calculated from October 31, 2019, the date of conversion;

• Punitive damages in the amount of $250,000.00 as prayed by the Complaint and permitted in connection with Defendants unlawful subleasing pursuant to California Civil Code §3343.5 and in connection with Fraud cause of action;

• An award of actual damages; and reasonable attorney’s fees and costs; pursuant to California Civil Code §3343.5, Plaintiff request a leave to file a declaration of his costs and attorney fees within 5 days following an order, granting this request; and,

• A re-payment to Plaintiff of the two (2) awards of monetary sanctions in Defendant’s favor in the amount of $2,300.00 and $7,795.00.

• An order prohibiting each Defendant to take any part or role in business related to any transaction described in California Vehicle Code §285 and limited by §286.”

[Memorandum, p. 35:6-36:2]

This situation accordingly is a case where plaintiff is seeking summary adjudication in favor of plaintiff. However, plaintiff has failed to sufficiently establish the essential element of a negligence claim: the exact amount of damages suffered and being claimed. Moreover, the motion seeks damages which are unavailable or which plaintiff has failed to support.

In Department of Industrial Relations v. UI Video Stores (1997) 55 Cal.App.4th 1084, the court of appeal specifically held that where issues of the calculation of damages remain to be determined, it is not appropriate to grant summary judgment:

“Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited instances. (Code Civ. Proc., @ 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) P 10:40.1, p. 10 17 [summary judgment or adjudication improper where amount of damages raises factual issue].) The correct procedure below would have been a motion to bifurcate the issue of liability, which the parties could have tried upon the undisputed facts. (Code Civ. Proc., at 598.) A decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.”

Department, at 1097.

As noted above, the motion proposes to submit evidence later concerning the statutory damages recoverable. This approach is improper. The motion is also devoid of any evidence whatsoever supporting the amount claimed for emotional distress damages. Plaintiff evidently relies on the declaration of Patrick Lee, in which he broadly states that he is “simply shocked” that Timani chose to lie to him “with the only intent to steal around $60,000 of my money,” that Timani had a “truly evil intent” to hurt Lee, “emotionally and to make me suffer,” and concluding:

“During this time, my body weight dropped from around 170 lb. to below 140 lbs. I was advised by my physician that stress was a substantial factor resulting in serious health conditions, which I have been experiencing since the beginning of my business venture with Mr. Timani.

[Lee Decl., paras. 221-223].

No calculation of a sum of emotional distress damages is provided, and no evidence from the advising doctor is submitted. The separate statement also does not refer to any calculation or basis for these emotional distress damages, stating only that Lee has suffered weight loss which has been attributed by a specialty doctor to stress. [UMF No. 144]. The opposition also points out that plaintiff CAC Motors is a business entity, Lee himself is not a plaintiff, and so plaintiff is not an individual person capable of suffering compensable emotional distress.

Plaintiff has also failed to establish how in a negligence claim plaintiff would be entitled to prejudgment interest. Plaintiff also offers no authority or argument under which it would be appropriate on summary adjudication for the court to order re-payment of two monetary sanctions awards in defendants’ favor, or to enter an order prohibiting defendants from taking part in future business-related transactions.

Moreover, plaintiff clearly seeks punitive damages in connection with this cause of action, and again requests that punitive damages be awarded in the reply. It has long been held that punitive damages may not be awarded on a motion for summary judgment. Haines v. Parra (1987) 193 Cal.App.3d 1553, 1560-1561. Moreover, there is no evidence offered in the moving papers concerning how the sum sought is justified, particularly, no evidence is submitted concerning defendants’ financial condition.

This situation does not appear to be a case, as the court sometime sees, where a plaintiff seeking summary adjudication formally waives any claim for punitive damages. Such a waiver had not been filed or suggested here.

Plaintiff accordingly has failed to meet any initial burden on this motion for summary adjudication, as there are competing reasonable inferences with respect to negligence, comparative fault and causation. In addition, plaintiff has failed to establish entitlement to damages in a proven sum and is seeking damages which are not established in an exact amount, or any amount, or otherwise are not available at all as to some categories of damages sought. The motion is denied on this ground.

Even if the burden had shifted, the opposition raises triable issues of material fact with respect to whether defendants breached any duty to plaintiff. The defendants have submitted evidence that they were never the title or lienholders withholding the certificate of title because they never received title from the lender, Mercedes Financial. [Additional Facts Nos. 157-159, and evidence cited, Timani Decl., paras 15-17].

Defendants also emphasize that there are triable issues of material fact with respect to whether there was comparative negligence on the part of plaintiff occasioned by plaintiff’s improperly attempting to prematurely export the vehicle when plaintiff, as a specialist in the area, would have known the requirements for exporting were lacking, including the certificate of title. Moreover, plaintiff has conceded in the moving papers that plaintiff knew it had not yet obtained such a certificate, but plaintiff chose to take the risk of maintaining the vehicle at CU Transport without a certificate of ownership. CU Transport is a logistics warehouse that loads vehicles into containers and readies them for exportation via ocean freight. At such a location, there was a known risk that law enforcement could conduct a raid and take possession of the vehicle which lacked a certificate of title. [Additional Facts Nos. 147, 148, 5, 149, 152, 156- 161, and evidence cited, Timani Decl., para. 4-9, 14-19; Exs. A, H, I, J, K, L, M, N, O].

Triable issues remain, and the motion is denied.

ISSUE 2: Plaintiff is entitled to summary adjudication in its favor on the Second Cause of Action in the Complaint for Conversion against Defendants, as Plaintiff was the owner of its funds, Defendants through unlawful lease, intentionally and substantially interfered with the funds by taking their possession, withheld Plaintiff’s funds; Defendants refused to return such funds to Plaintiff upon his repeated demands. Plaintiff did not consent to Defendants’ withholding of its funds. Plaintiff was and is deprived of the benefits of having their funds. Plaintiff’s loss is directly and proximately caused by Defendants’ actions and/or inactions.

To establish a cause of action for conversion, plaintiff must allege and prove the following elements: Ownership, or right to possession of property; wrongful disposition of property right; and damages. Imperial Valley Land Co. v. Globe Grain & Milling Co. (1921) 187 Cal. 352, 354-355.

Again, the cause of action requires proof of damages suffered. It is particularly clear from the moving papers that in connection with this cause of action, plaintiff is seeking emotional distress damages, which, as discussed above, are not available, and in any case, are not established in a specific sum. In addition, the motion improperly seeks punitive damages to be awarded on a motion for summary judgment.

Plaintiff accordingly has failed to meet its initial burden of establishing each element of its cause of action, and the motion is denied.

In addition, as pointed out in the opposition, plaintiff has failed to submit any showing which would establish that the individual defendants, Johnson and Timani, received or converted any funds. The reply argues that the individuals are represented by the same law firm as defendant X3, and that these individuals will simply change the business name on the day judgment is entered, resulting in injustice and preventing plaintiff from recovery. This type of unwarranted speculation is not sufficient to support an alter ego finding. The motion is denied as to the individual defendants on this ground as well.

ISSUE 3: Plaintiff is entitled to summary adjudication in its favor on the Third Cause of Action in the Complaint for Breach of Contract against the Defendants because the parties entered into the agreement for sale of the vehicle from Defendants to Plaintiff. Plaintiff paid the agreed-upon price. Defendants failed to produce a vehicle, to which they would hold a title, instead, Defendants willfully supplied the Plaintiff with a vehicle, whose title was and at all relevant times remained encumbered by lease. Lawful owner exercised his right to the vehicle through repossession. Defendant refused to refund the money paid by the Plaintiff proximately resulting in his damages in the form of the funds paid to Defendants.

“To prevail on a cause of action for breach of contract, the plaintiff must prove

(1) the contract,

(2) the plaintiff's performance of the contract or excuse for nonperformance,

(3) the defendant's breach, and

(4) the resulting damage to the plaintiff.”

Richman v. Hartley (2014, 2nd Dist.) 224 Cal.App.4th 1182, 1186.

Again, plaintiff has failed to fully meet its burden on this motion to establish the essential element of damages, as the moving papers seek, in addition to actual damages, statutory damages, which are not available in connection with this cause of action. Also, emotional distress damages, also not available in connection with breach of contract. In addition, punitive damages are not available in connection with a motion for summary judgment, or, for that matter, in connection with a cause of action for breach of contract. See Civil Code § 3294 (authorizing recovery of punitive damages only “in an action for breach of an obligation not arising from contract…”).

In Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, the Second District held, “As damages are an element of a breach of contract cause of action, a plaintiff cannot obtain judgment on a breach of contract cause of action in an amount of damages to be determined later.” Paramount Petroleum, at 241, internal citation omitted. Accordingly, summary judgment or adjudication are improper where “the issue of calculation of damages apparently remain to be determined.” Paramount Petroleum, at 243, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) 10:40.1.

Plaintiff accordingly has failed to meet its initial burden on this motion of establishing each element of its cause of action for breach of contract.

In addition, plaintiff has not established that there was a contract pursuant to which a certificate of title would be received in the time frame assumed by plaintiff such that the alleged delay in providing title breached any contract between the parties. Specifically, the moving papers concede that plaintiff has “never received an invoice or contract for the VEHICLE.” [Lee Decl., para. 71]. The Lee Declaration does not establish that there was a term of any contract between the parties concerning the timing of the provision of the certificate of title, which was necessarily dependent on the conduct of the financial institution from which the vehicle was proposed to be leased. The moving papers, with respect to the term of the contract, which was allegedly breached, at best rely on a paragraph of the Lee Declaration which states:

“I considered Mr. Timani’s representation that the VEHICLE was

obtained by him on or prior to October 26, 2019 and concluded that Plaintiff would be able to receive the certificate of ownership prior to December 13, 2019, enabling the exportation of the VEHICLE. My decision was influenced by Mr. Timani’s representation that other buyers were positive about the market.”

[Lee Decl., para. 66].

This showing is not sufficient to show any meeting of the minds or agreement by the parties that the certificate of title would be issued by December 13, 2019, but rather it is an undisclosed assumption by plaintiff. The motion accordingly also fails to show that the conduct of defendants breached an enforceable term of the agreement between the parties.

In addition, defendants submit evidence supporting a reasonable inference that any express, oral, or implied by conduct contract between the parties over the course of several transactions required a multi-step procedure to satisfy the expectations of both parties, and that plaintiff, by failing to keep the vehicle secure, rather than taking steps to export the vehicle before a certificate of title was obtained from Mercedes Financial, failed itself to perform its duties under the contract. Hence, plaintiff will be unable to establish that defendants’ alleged breach of the contract caused plaintiff’s damages. [See Additional Facts Nos. 157-159, and evidence cited, Timani Decl, paras. 16-18, Exs. L, M].

Specifically, Timani explains that for each of the nine transactions the parties conducted, they agreed that “the terms of the deal would involve 5 steps,” setting forth each step. [Timani Decl., para. 5]. Timani also indicates that:

“as a licensed dealer, CAC knew that it was required to secure title before attempting to exert any ownership rights. In other words, CAC knew that it could not attempt to export a vehicle for which title was not yet secure (i.e., to which the lienholder held an interest), as doing so would not only constitute a breach of the parties’ agreement, but it would violate applicable law.”

[Timani Decl., para. 4].

The Declaration explains how, despite eight previously successful transactions, the fifth step in this particular transaction was not completed. This step required, in effect, that the certificate of title would be secured before CAC attempted to exert any ownership rights. [Timani Decl., paras. 15-18]. Timani indicates:

“Despite acknowledging by way of text message that it had not yet obtained a Certificate of Title for the subject vehicle, CAC took a gamble and sought to export the vehicle in direct violation of the terms of the parties’ agreement and in violation of applicable laws. Namely, CAC prematurely relocated the vehicle to CU Transport, which is a logistics warehouse that loads vehicles into containers and readies them for exportation via ocean freight. A true and correct printout of CU Transport’s website evidencing the same is attached hereto as Exhibit L.”

[Timani Decl., para. 17].

Timani further explains defendants’ position concerning what next occurred:

On December 16, 2019, and solely as a result of CAC’s willful breach of the agreement and haste in attempting to export the subject vehicle before securing a Certificate of Title, the California Highway Patrol raided the CU Transport facilities and seized the subject vehicle.”

[Timani Decl., para. 18, emphasis in the original].

Triable issues of material fact accordingly remain to be resolved with respect to the terms of the contract. The issues include whether plaintiff will be able to establish that it fully performed under the agreement of the parties, and whether plaintiff can establish that defendants breached the contract. Triable issues of fact then still remain as to whether the breach caused the claimed damages. The motion on this issue is denied.

ISSUE 4: Plaintiff is entitled to summary adjudication in its favor on the Fourth Cause of Action in the Complaint for Fraud against Sleiman Timani and X3 AST Consulting, Inc. (Collectively referred to as Sellers).

Sellers made false representations, that:

a. They have or will have a clear unencumbered title such as to

permit exportation of the 2020 Mercedes-Benz GLS450 bearing

VIN 4JGFF5KE1LA129289 (VEHICLE) outside of the territory.

of the United States.

b. That in exchange of a payment of $91,639.72 made to X3 AST

Consulting, Inc., Plaintiff will receive on or before December 13, 2019 the VEHICLE with its unencumbered title such as described in a. and its certificate of ownership.

c. That VEHICLE was repossessed from the Plaintiff at no fault of Defendants.

d. That VEHICLE will be returned to Plaintiff upon a payment of $8,237.79 within 1 or 2 days.

e. That the return of the VEHICLE as described in d. will be made along with its certificate of ownership.

f. That in the event that VEHICLE is not returned to the Plaintiff, Sleiman Timani will personally refund Plaintiff the entirety of the funds paid in connection with the VEHICLE by the Plaintiff.

In reliance upon Sellers’ representation as described above in a. and b., Plaintiff transferred $91,639.72 to X3 AST Consulting, Inc.

In reliance upon Seller’s representation as described in c. ,d., e., and f. Plaintiff transferred additional $8,237.79 to X3 AST Consulting, Inc.

At the time of making the representation described in a. Sellers knew that they did not and will not have such title to the VEHICLE as they promised to the Plaintiff.

At the time of making the representation described in b. Sellers knew that the described title and certificate of ownership will not be delivered to the Plaintiff on or before December 13, 2019.

At the time of making the representation described in c. Sellers knew that the VEHICLE was repossessed due to Defendant’s breach of contract with a third party.

At the time of making the representation described in d. and e. Sellers knew that the VEHICLE will not be returned to Plaintiff within 1 or 2 days after the payment of $8,237.79, moreover Sellers knew that they will not return the VEHICLE nor its title and certificate of ownership to Plaintiff within any period of time.

At the time of making the representation described in f. Sleiman Timani knew that the VEHICLE was repossessed as a result of intentional actions or inactions; that Defendants will take no steps to return the VEHICLE to Plaintiff; and that Sleiman Timani will not return the funds paid by Plaintiff in connection with the VEHICLE. Plaintiff suffered damages as a direct and proximate result of Sellers’ misrepresentation.

ISSUE 5: Plaintiff is entitled to summary adjudication in its favor on the Fifth Cause of Action in the Complaint for False Promise. Plaintiff relied upon Defendants’ representation, first, when he believed that Defendants would deliver him a vehicle unencumbered by lease, second, that the VEHICLE would be returned to Plaintiff upon making an additional payment. Those misrepresentations were made with intent to cause Plaintiff damages. Defendants intentionally caused the title to the VEHICLE to be encumbered by lease. Plaintiff’s reliance upon Defendants intentional misrepresentations resulted in harm to the Plaintiff.

To establish a claim for fraud, plaintiff must plead and prove the following elements: A false representation, actual or implied, or concealment of a matter of fact material to the transaction which defendant had a duty to disclose, or a promise made without intent to perform; defendant’s knowledge of the falsity; defendant’s intent to induce another into relying on the representation; plaintiff’s justifiable reliance thereon; and resulting damage to plaintiff. Pearson v. Norton (1964) 230 Cal.App.2d 1, 7-12.

Again, an essential element of the cause of action is resulting damages. The causes of action clearly seek emotional distress and punitive damages, and the sum of damages to be entered as judgment has not been established, and punitive damages are not available on summary judgment. Plaintiff accordingly has failed to meet its initial burden of establishing all elements entitling plaintiff to summary adjudication, and the motion on this issue is denied.

In addition, even if the burden had shifted to defendants to raise triable issues of fact, the opposition explains that at the time defendants required further payment from plaintiff to address the vehicle being seized, defendants believed they could retake possession of the vehicle, and that the funds were needed to cover expenses associated with those efforts, but that circumstances had changed.

The Timani Declaration states:

“However, in January of 2020, just a few days after CAC issued said payment, the COVID-19 pandemic began to spread like wildfire throughout the globe. In fact, China imposed a lockdown of major cities starting on January 23, 2020. Thus, after further consideration and in light of the uncertainties the COVID-19 pandemic would have on the way of life, retaking possession of the subject vehicle was simply not feasible.”

[Timani Decl., para. 22].

Triable issues of fact remain with respect to any intent on the part of defendants to defraud plaintiff or that defendants made any promise without intending to perform. The motion on this issue accordingly is denied.

ISSUE 6: Plaintiff is entitled to the adjudication of the alter ego allegations of the Complaint, such as to permit ignorance of the corporate entity, and determination that Defendants X3 AST Consulting, Inc., Sleiman Timani and Marques Johnson were the agents, servants, employees, partners and alter egos of each and every other Defendant. The papers concurrently filed in support of this motion show that there are no triable issues as to any material fact and the moving party is entitled to a judgment as a matter of law.

This issue seeks to establish that defendants are employees, partners or alter egos of each other.

CCP § 437c(f) provides that “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.”

The argument concerning alter ego does not dispose of any entire cause of action, and is not framed in terms of establishing an issue of duty.

The summary judgment statute was amended in 2011 to add a subdivision permitting summary adjudication of other issues only under specified circumstances. That subdivision as currently effective, CCP § 437c (t), requires that a party may move for summary adjudication of a legal issue or claim for damages that does not completely dispose of a cause of action, but that before filing such a motion, the parties must submit to the court a joint stipulation stating the issues to be adjudicated, and a declaration from each party that the motion will further the interests of judicial economy with specified grounds, and obtain from the court a determination with respect to whether the court will allow the filing of the motion. In addition, a specified statement must be contained in the notice of motion, which must be signed by all counsel for all parties. CCP section 437c(f)(4)(A) and (B).

No such stipulation was filed, and no court determination was obtained here, and the notice does not conform with the subdivision. The motion accordingly is improperly made for “partial” summary judgment or adjudication and is denied as to this issue.

The memorandum argues that plaintiff is entitled to punitive damages. This adjudication is not sought or designated as an “ISSUE” either in the notice of motion or the separate statement. As noted above, it is held that a court may not summarily adjudicate claims or defenses unless requested in the notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal. App.3d 494, 498. Where only certain claims or defenses are raised, the court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.

In addition, and also as discussed above, punitive damages may not in any case be awarded on this motion for summary judgment. Haines v. Parra (1987) 193 Cal.App.3d 1553, 1560-1561.

The motion as to this argument accordingly is not considered by the court.

RULING:

Plaintiff CAC Motors’ Motion for Summary Judgment:

The Court in its discretion has reluctantly considered the memorandum filed in support of the motion, despite the fact that the memorandum exceeds the mandatory page limitations by ten pages, to the prejudice of defendants. See CRC Rules 3.1113(d), (g), 3.1300 (d). The Court will hear argument from defendants concerning whether defendants would like the opportunity to file and serve supplemental briefing. The Court also notes the very lengthy memorandum does not include a single citation to evidence in support of the motion. Plaintiff’s request in the reply that the matter be continued, and plaintiff permitted to submit an appropriate memorandum is DENIED as unnecessary.

The Court in its discretion has also reluctantly considered the motion and the separate statement filed in support of the motion, despite the fact that the separate statement fails to comply with the requirements for the content of a separate statement. Specifically, (1) the separate statement does not set forth the facts which plaintiff is claiming support summary adjudication of each of the causes of action or issues raised by the motion, but provides the facts without reference to which issue the specific facts are intended to support, (2) the separate statement does not identify each fact set forth by number beyond Fact No. 8, and (3) the separate statement includes several facts which are not followed by a reference or citation to supporting evidence. See 3.1350 (c), (d), and (h), CCP section 437c(b)(1). The Court has exercised its discretion to consider the separate statement, largely because defendants in their responsive separate statement have numbered the facts, which numbering the Court has followed in its ruling. The Court also notes that it does not consider the statements made in the separate statement to constitute evidence in connection with this motion, but has considered the actual evidence submitted to establish facts. Plaintiff’s request in the reply that the matter be continued, and plaintiff permitted to submit an appropriate separate statement is DENIED.

The Court in its discretion has also considered the untimely reply papers, filed one court day, and four calendar days late. Plaintiff is cautioned that in the future the court may refuse to consider papers not filed in compliance the applicable rules, statutes, and deadlines.

Plaintiff CAC Motors’ Motion for Summary Judgment is DENIED. Although the motion is entitled one for summary judgment, the motion addresses only five causes of action, so does not dispose of plaintiff’s entire complaint or entitle Plaintiff to judgment in its favor in this action.

To the extent the Notice of Motion identifies the motion as one for Summary Adjudication of Issues, the Motion is DENIED.

Motion is DENIED.

Plaintiff has failed to meet its initial burden of establishing each element of the cause of action entitling it to summary adjudication. Plaintiff has failed to establish by evidence the full sum of damages to which plaintiff claims to be entitled. See Department of Industrial Relations v. UI Video Stores (1997) 55 Cal.App.4th 1084; Haines v. Parra (1987) 193 Cal.App. 3d 1553, 1560-1561.

Plaintiff also submits evidence with the moving papers which supports a reasonable competing inference that defendants did not in fact violate the subject statute, but did not hold title to the vehicle which was being withheld, with title remaining in Mercedes Financial, and that any alleged negligence on the part of defendants would be subject to an analysis of plaintiff’s comparative negligence and causation, as plaintiff evidently arranged for transport and storage of the vehicle in anticipation of exportation overseas, when plaintiff had been repeatedly notified that plaintiff had not yet been provided a certificate of title in the vehicle. [UMF Nos. 13, 14, 22, 23, 30, 37, 45-53, and evidence cited, Lee Declaration, paras. 41, 42, 67, 73, 79-89, 90, Ex. 6; Kouprine Decl., para. 4, Ex. 4].

This evidence shows that a contributing factor to plaintiff’s loss of the vehicle was plaintiff’s own conduct in having the vehicle transported to, and held at CU Transport for export, when plaintiff did not have a certificate of title in the subject vehicle, so that the vehicle appeared to law enforcement to have been stolen, and, in addition, the vehicle was subject to an export prohibition during the period in question.

Plaintiff accordingly has failed to meet its initial burden on this cause of action, and also raises triable issues of material fact, and the burden does not shift to defendants to raise triable issues of material fact.

Even had the burden shifted, defendants in opposition raise triable issues of material fact with respect to any statutory violations, as defendants have submitted evidence that they were never the title or lienholders withholding the certificate of title, as they never received title from the lender, Mercedes Financial. [Additional Facts Nos. 157-159, and evidence cited, Timani Decl., paras 15-17].

Defendants also emphasize that there are triable issues of material fact with respect to whether there was comparative negligence on the part of plaintiff occasioned by plaintiff’s improperly attempting to prematurely export the vehicle when plaintiff, as a licensed dealer and specialist in the area, would have known the requirements for exporting, including that plaintiff present a certificate of title, knew that plaintiff had not yet obtained such a certificate, but chose to take the risk of maintaining the vehicle at CU Transport, a logistics warehouse that loads vehicles into containers and readies them for exportation via ocean freight, where there was a known risk that law enforcement could conduct a raid and take possession of the vehicle which lacked a certificate of title. [Additional Facts Nos. 147, 148, 5, 149, 152, 156- 161, and evidence cited, Timani Decl., para. 4-9, 14-19; Exs. A, H, I, J, K, L, M, N, O].

Motion is DENIED.

A cause of action for conversion includes as an essential element, damages. Imperial Valley Land Co. v. Globe Grain & Milling Co. (1921) 187 Cal. 352, 354-355.

Plaintiff has failed to submit sufficient proof of damages suffered which are clearly being claimed, including emotional distress damages, and improperly seeks punitive damages.

Plaintiff has accordingly failed to meet its initial burden of establishing each element of its cause of action and the motion is properly denied.

In addition, plaintiff has failed to submit any showing which would establish that the individual defendants, Johnson and Timani, received or converted any funds.

ISSUE 3: Plaintiff is entitled to summary adjudication in its favor on the Third Cause of Action in the Complaint for Breach of Contract against the Defendants because the parties entered into the agreement for sale of the vehicle from Defendants to Plaintiff. Plaintiff paid the agreed-upon price. Defendants failed to produce a vehicle, to which they would hold a title, instead, Defendants willfully supplied the Plaintiff with a vehicle, whose title was and at all relevant times remained encumbered by lease. Lawful owner exercised his right to the vehicle through reposition. Defendant refused to refund the money paid by the Plaintiff proximately resulting in his damages in the form of the funds paid to Defendants.

Motion is DENIED.

Again, an essential element of a cause of action for breach of contract is that resulting damages. Richman v. Hartley (2014, 2nd Dist.) 224 Cal.App.4th 1182, 1186. Plaintiff has failed to meet its burden on this motion to establish the essential element of damages, as the moving papers seek, in addition to actual damages, statutory damages, which statutory damages are not available in connection with this cause of action, as well as emotional distress damages, also not available in connection with breach of contract, and punitive damages, which are not available in connection with a motion for summary judgment, or in connection with a cause of action for breach of contract. See Civil Code § 3294 (authorizing recovery of punitive damages only “in an action for breach of an obligation not arising from contract…”). See Paramount Petroleum Corp. v. Superior Court (2014, 2nd Dist.) 227 Cal.App.4th 226, 241, 243.

Plaintiff accordingly has failed to meet its initial burden on this motion of establishing each element of its cause of action for breach of contract.

In addition, it is not established that there was a contract pursuant to which a certificate of title would be received in the time frame assumed by plaintiff, so that the alleged delay in providing title breached any contract between the parties. Specifically, the moving papers concede that plaintiff has “never received an invoice of contract for the VEHICLE.” [Lee Decl., para. 71]. The Lee Declaration does not establish that there was a term of any contract between the parties concerning the timing of the provision of the certificate of title, which was necessarily dependent on the conduct of the financial institution from which the vehicle was proposed to be leased. The moving papers, with respect to the term of the contract, which was allegedly breached, at best rely on a paragraph of the Lee Declaration which states:

“I considered Mr. Timani’s representation that the VEHICLE was

[Lee Decl., para. 66].

This showing is not sufficient to show any meeting of the minds or agreement by the parties that the certificate of title would be issued by December 13, 2019, but it appears that by this motion plaintiff seeks to enforce an undisclosed assumption by plaintiff. The motion accordingly also fails to sufficiently show that the conduct of defendants breached an enforceable term of the agreement between the parties. Plaintiff has not met its initial burden, and the motion is denied.

Even had the burden shifted, defendants submit evidence supporting a reasonable inference that any express, oral or implied by conduct contract between the parties over the course of several transactions required a multi-step procedure to satisfy the expectations of both parties, and that plaintiff by failing to keep the vehicle secure, rather than taking steps to export the vehicle before a certificate of title was obtained from Mercedes Financial, failed itself to perform its duties under the contract, and therefor plaintiff will be unable to establish that defendants’ alleged breach of the contract caused plaintiff’s damages. [See Additional Facts Nos. 157-159, and evidence cited, Timani Decl, paras. 4, 5, 15-18, Exs. L, M].

Triable issues of material fact accordingly remain to be resolved with respect to the terms of the contract, and whether plaintiff will be able to establish that it fully performed under the agreement of the parties, or to establish that defendants breached the contract, which breach caused the claimed damages.

Sellers made false representations, that:

a. They have or will have a clear unencumbered title such as to

permit exportation of the 2020 Mercedes-Benz GLS450 bearing

VIN 4JGFF5KE1LA129289 (VEHICLE) outside of the territory.

of the United States.

b. That in exchange of a payment of 91,639.72 made to X3 AST

Consulting, Inc., Plaintiff will receive on or before December 13, 2019 the VEHICLE with its unencumbered title such as described in a. and its certificate of ownership.

c. That VEHICLE was repossessed from the Plaintiff at no fault of Defendants.

d. That VEHICLE will be returned to Plaintiff upon a payment of $8,237.79 within 1 or 2 days.

e. That the return of the VEHICLE as described in d. will be made along with its certificate of ownership.

f. That in the event that VEHICLE is not returned to the Plaintiff, Sleiman Timani will personally refund Plaintiff the entirety of the funds paid in connection with the VEHICLE by the Plaintiff.

In reliance upon Sellers’ representation as described above in a. and b., Plaintiff transferred $91,639.72 to X3 AST Consulting, Inc.

In reliance upon Seller’s representation as described in c., d., e., and f. Plaintiff transferred additional $8,237.79 to X3 AST Consulting, Inc.

At the time of making the representation described in a. Sellers knew that they did not and will not have such title to the VEHICLE as they promised to the Plaintiff.

At the time of making the representation described in b. Sellers knew that the described title and certificate of ownership will not be delivered to the Plaintiff on or before December 13, 2019.

At the time of making the representation described in c. Sellers knew that the VEHICLE was repossessed due to Defendant’s breach of contract with a third party.

Motion is DENIED.

An essential element of a cause of action for fraud is resulting damages to plaintiff. See Pearson v. Norton (1964) 230 Cal.App.2d 1, 7-12.

The fraud causes of action clearly seek emotional distress and punitive damages, and as discussed above, the sum of damages to be entered as judgment has not been established, and punitive damages are not available on this motion for summary adjudication. Plaintiff accordingly has failed to meet its initial burden of establishing all elements entitling plaintiff to summary adjudication, and the motion on this issue is properly denied.

Even had the burden shifted to defendants to raise triable issues of fact, the opposition submits testimony indicating that at the time defendants required further payment from plaintiff to address the vehicle being seized, defendants believed they could retake possession of the vehicle, and that the funds were needed to cover expenses associated with those efforts, but that circumstances changed, including the unexpected onset of the COVID-19 pandemic. [Timani Decl., para. 22].

Triable issues of fact remain with respect to any intent on the part of defendants to defraud plaintiff or that defendants made any promise without intending to perform.

Motion is DENIED.

The issue does not completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty, as required under CCP § 437c(f).

Defendants’ UNOPPOSED Request for Judicial Notice in Support of Defendants’ Opposition to Plaintiff’s Motion for Summary Adjudication is GRANTED.

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines. In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask. The Department D Judge and court staff will continue to wear face masks. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.