Judge Robert B. Broadbelt, Case Number: 20STCV12016, Date: 2024-01-10 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 20STCV12016, Date: 2024-01-10 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court did not consider the filings entitled “Plaintiffs’ Response to Defendant, Diana Gaytan’s Reply Brief in Support of Motion for Summary Judgment or in the Alternative Summary Adjudication” and “Addendum to Plaintiffs’ Opposition and to Separate Statement and to Declaration of Dennis Luna Relative to Defendant, Diana Gaytan’s Motion for Summary Judgment or in the Alternative for Summary Adjudication,” filed on February 27, 2024 by plaintiffs Dennis Luna and Vanessa Luna Bishop after defendant Diana Gaytan filed her reply papers, because parties are not permitted to file sur-reply briefs without leave of court. (Code Civ. Proc., § 437c, subd. (a), (b) [authorizing filing of moving, opposition, and reply papers in connection with a motion for summary judgment or summary adjudication].)

The court rules on defendant Diana Gaytan’s evidentiary objections, filed on January 26, 2024, as follows:

The court grants defendant Diana Gaytan’s requests for judicial notice. (Evid. Code, § 452, subds. (c), (d); Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 916, 924, n. 1 [recorded documents were properly noticed by the trial court].)

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendant Diana Gaytan (“Defendant”) moves the court for an order granting summary judgment in her favor and against plaintiffs Dennis Luna (“Luna”) and Vanessa Luna Bishop (“Bishop”) (collectively, “Plaintiffs”) on their Third Amended Complaint or, in the alternative, granting summary adjudication as to the second and third causes of action.[1]

The court notes that, in opposition, Plaintiffs have pointed out that (1) Defendant filed a prior motion for summary judgment directed to their Third Amended Complaint on March 20, 2023; (2) on May 11, 2023, Judge Jill Feeney (presiding over Department 78) issued a minute order that (i) set forth the court’s tentative ruling on Defendant’s motion for summary judgment, which denied the motion as to the second cause of action but granted it as to the third cause of action, and (ii) continued the hearing on Defendant’s motion for summary judgment to June 14, 2023, in order to allow plaintiff Luna to attend the hearing; and (3) Defendant filed, on June 12, 2023, a preemptory challenge to Judge Jill Feeney pursuant to Code of Civil Procedure section 170.6. (March 22, 2023 Minute Order, p. 1 [deeming Defendant’s ex parte application for joinder to be a motion for summary judgment]; May 11, 2023 Minute Order, pp. 1, 6; Def. June 12, 2023 Peremptory Challenge.) On June 12, 2024, Judge Jill Feeney issued a minute order finding that Defendant’s peremptory challenge was timely filed, was in proper format, and thus was accepted. (June 12, 2023 Minute Order, p. 1.) This action was thereafter assigned to Department 53.

Judge Jill Feeney did not issue a final order on Defendant’s first motion for summary judgment or summary adjudication before this case was transferred to Department 53. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300 [“a trial court’s tentative ruling is not binding on the court; the court’s final order supersedes the tentative ruling”].) Although Plaintiffs assert that Defendant was engaging in “judge-shopping,” Plaintiffs do not cite any authority that would require or permit the court to deny Defendant’s motion for summary judgment or adjudication under the circumstances presented.

“The elements of intentional misrepresentation ‘are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.’” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245.)

The court finds that Defendant has met her burden of showing that the second cause of action for intentional misrepresentation has no merit because Defendant has shown that an element of the cause of action (a misrepresentation made by Defendant) cannot be established.

Plaintiffs have alleged that Defendant “misled [p]laintiff Luna by falsely assuring [him] that a Life Estate existed for Plaintiff Luna in the Property, which ultimately induced Plaintiff Luna to enter into the Agreement[.]” (TAC ¶ 35; TAC ¶ 39 [Defendant induced plaintiff Luna by “making the false promise [that] [p]laintiff Luna would retain a Life Estate in the Property”].) Defendant has submitted the deposition testimony of plaintiff Luna, in which, after being asked whether Defendant “ever t[old] [Luna] verbally or in writing that [he] would have a life estate in the Keenan Street property[,]” he stated that “Marc [Grismer] did, and she knew about it.” (Gaytan Decl., Ex. F, Luna Dep., p. 197:3-6.) When asked to confirm whether Defendant “affirmatively either t[old] [him] verbally, face-to-face, over the phone or in writing that [he] had a life estate[,]” plaintiff Luna said “No. She told me we’re going to all live together, and [she’d] take care of [him].” (Id., p. 197:12-17.) Defendant has also submitted her declaration, in which she states that she “did not represent to [plaintiff Luna] either verbally or in writing that [she] was giving him a life estate in the Subject Property.” (Gaytan Decl., ¶ 20.) The court finds that this evidence is sufficient to show that the element of a misrepresentation made by Defendant to plaintiff Luna cannot be established.

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the element of a misrepresentation made by Defendant to plaintiff Luna.

In support of their opposition, Plaintiffs have submitted (1) a copy of the Ancillary Agreement for Purchase of Real Property (the “Ancillary Agreement”), entered into by and between Plaintiffs, on the one hand, and nonmoving defendants Fernando Gaytan and Angie Coello (“Buyer Defendants”) on the other hand, and (2) the declaration of plaintiff Luna.

First, Plaintiffs assert that the terms of the Ancillary Agreement establish that Defendant was aware that Plaintiff intended to reside in the subject property. (Mot., p. 15:15-18.) The court acknowledges that the Ancillary Agreement includes a provision stating that the promissory note (to be executed by Buyer Defendants) will become due and payable either five years from the date of the sale or, “if [plaintiff Luna] so chooses to reside in the Subject Property, then upon Dennis Luna’s demise.” (Pl. Ex. 2, Ancillary Agreement, p. 1, ¶ 1, subd. (b).) However, this language does not show that a triable issue of material fact exists as to whether Defendant made the alleged misrepresentation that is the basis of Plaintiffs’ cause of action (i.e., that Defendant “falsely assert[ed] that a Life Estate existed for Plaintiff Luna in the property”). (TAC ¶ 36.) Instead, the terms of the Ancillary Agreement (to which Defendant was not a party) appears only to contemplate that plaintiff Luna had the option to continue residing on the subject property.

Second, plaintiff Luna states in his declaration that Defendant informed him that he “could retain a life estate in the manner that Mr. Grismer had previously suggested[,]” which induced him to agree to that proposal. (Pl. Response to Material Fact No. 36; Luna Decl., ¶ 7.) The court finds that this statement is insufficient to show that a triable issue of material fact exists as to whether Defendant falsely asserted to plaintiff Luna that he had a life estate in the subject property.

As set forth above, as part of her moving papers, Defendant presented plaintiff Luna’s deposition testimony in which Luna expressly testified that Defendant did not tell him, verbally or in writing, that he had a life estate in the subject property. (Gaytan Decl., Ex. F, Luna Dep., p. 197:3-17.) Plaintiff Luna’s declaration now appears to contradict that testimony, since he now states that, during a meeting, Defendant “told him . . . that [he] could retain a life estate” in the property. (Luna Decl., ¶ 7.) The court finds that plaintiff Luna’s contradictory declaration is insufficient to show that a triable issue of material fact exists as to the existence of the alleged misrepresentation made by Defendant. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 [“Where, as here, however, there is a clear and unequivocal admission by the plaintiff, himself, in his deposition . . . we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact”] [citation and internal quotation marks omitted]; Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 603 [quoting D’Amico, supra, 11 Cal.3d at p. 21], 604 [the D’Amico Court “stated only that [contradictory] declarations may be insufficient to create a triable issue of material fact”].)

Thus, the court finds that Plaintiffs have not submitted evidence sufficient to show that a triable issue of material fact exists as to the element of misrepresentation.

The court therefore grants Defendant’s motion for summary adjudication as to the second cause of action for intentional misrepresentation.

“‘The elements for a claim of unjust enrichment are “receipt of a benefit and unjust retention of the benefit at the expense of another.” [Citation.] “The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” [Citation.]’” (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769.) “‘The term “benefit” “denotes any form of advantage.” ’” (Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238.)

The court finds that Defendant has met her burden of showing that the third cause of action for unjust enrichment has no merit because Defendant has shown that an element of the cause of action (that Defendant received a benefit at the expense of Plaintiffs) cannot be established.

In support of this cause of action, Plaintiffs have alleged that Defendant has been unjustly enriched (1) by delivering a 60-day notice to vacate in violation of the terms of the Ancillary Agreement, resulting in Defendant’s retaining possession of the property without making the final payment, and (2) in the amount of $300,000. (TAC ¶¶ 43-44.) As set forth above, the Ancillary Agreement was entered into by and between Plaintiffs and Buyer Defendants. (Gaytan Decl., Ex. B, Ancillary Agreement, pp. 1 [“This Agreement is entered into by and between Dennis Luna and Vanessa Luna Bishop (‘Sellers’) and Fernando Gaytan and Angie Coello (‘Buyers’)”], 3 [signature page].) The Ancillary Agreement provides that the Buyer Defendants would (and Fernando Gaytan did) execute a promissory note in the amount of $150,000, payable to plaintiff Bishop, which would become due and payable (1) five years from the date of sale, or (2) upon plaintiff Luna’s demise, if he chose to reside on the property. (Gaytan Decl., Ex. B, Ancillary Agreement, p. 1, § 1, subd. (b).) Pursuant thereto, defendant Fernando Gaytan executed the promissory note in the amount of $150,000. (Gaytan Decl., Ex. G, p. 2 [signature page of Fernando Gaytan].)

Defendant is not a party to either the Ancillary Agreement or promissory note. (Gaytan Decl., Exs. B, Ancillary Agreement, G, promissory note.) Thus, Defendant has met her burden to produce evidencing showing that she (1) is not obligated to make the payment set forth in those agreements, and (2) therefore has not received a benefit at the expense of Plaintiffs (i.e., she has not been benefited by (i) possessing the property without making all payments due and owing, and (ii) retaining the $150,000 payment described in the parties’ agreements). (Ibid.; TAC ¶¶ 43-44.) Moreover, Defendant has stated, in her declaration, that she does not currently, nor has she “ever had or been on title to the Subject Property.” (Gaytan Decl., ¶ 22.) Thus, Defendant has also shown that she has not retained property to the detriment of Plaintiffs.

The court finds that Plaintiffs have not met their burden to show that a triable issue of material fact exists as to the element of Defendant’s receipt of a benefit at their expense.

In opposition, Plaintiffs assert that Defendant has been enriched by her ability “to retain the $150,000, at this time . . . .” (Opp., p. 16:13-16.) However, Plaintiffs have not submitted evidence showing that Defendant was a party to the Ancillary Agreement or promissory note, such that Defendant was obligated to, but did not, make the $150,000 payment to Bishop and therefore has retained that amount at the expense of Plaintiffs. Instead, Plaintiffs state that, because Fernando Gaytan is Defendant’s father, their familial relationship “should result in a presumption that [Defendant] was unjustly enriched . . . .” (Luna Decl., ¶ 6; Opp., p. 17:21-24; Pl. Response to Material Fact No. 65.) Plaintiffs have not cited any authority establishing that Defendant may be construed to be unjustly enriched solely because she is related to a party to the Ancillary Agreement that might have been unjustly enriched at Plaintiffs’ expense. Moreover, Plaintiffs have not presented any other evidence showing Defendant’s retention of a benefit at Plaintiffs’ expense.

Thus, the court finds that Plaintiffs have not submitted evidence sufficient to show that a triable issue of material fact exists as to the element of Defendant’s receipt of a benefit at the expense of Plaintiffs.

The court therefore grants Defendant’s motion for summary adjudication as to the third cause of action for unjust enrichment.

Because the court has granted summary adjudication as to each remaining cause of action alleged against Defendant, the court finds that all of the papers submitted show that there is no triable issue as to any material fact and that Defendant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court therefore grants Defendant’s motion for summary judgment.

The court grants defendant Diana Gaytan’s motion for summary judgment on plaintiffs Dennis Luna and Vanessa Luna Bishop’s Third Amended Complaint.

The court orders defendant Diana Gaytan to prepare, serve, and lodge a proposed judgment no later than 10 days from the date of this order.

The court sets an Order to Show Cause re entry of judgment for hearing on June 11, 2024, at 8:30 a.m., in Department 53.

[1] On September 2, 2021, the court sustained Defendant’s demurrer to Plaintiffs’ first and fourth causes of action without leave to amend. (Sep. 2, 2021 Order, pp. 1, 6, 7.)

DENNIS LUNA , et al.; Plaintiffs, vs. FERNANDO GAYTAN , et al.; Defendants.	Case No.:	20STCV12016

	Hearing Date:	March 13, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: DEFENDANT’S motion for summary judgment or, in the alternative, summary adjudication