Judge: Robert C. Longstreth, Case: 37-2020-00019472-CU-BC-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2020-00019472-CU-BC-CTL RONRO ENTERPRISES LLC VS TIL TWO LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/16/2023

Plaintiffs' Motion for Summary Judgment and/or Adjudication (ROA 241) is GRANTED IN PART and DENIED IN PART.

Per the notice of motion, Plaintiffs seek summary judgment, or alternatively, 'Plaintiffs request summary adjudication in connection with its breach of contract claim, and its claims for money had and received and unjust enrichment.' (Ntc. at 2:14-16.) However, Plaintiffs do not allege a cause of action for money had and received in their Complaint. Thus, at most Plaintiffs seek summary adjudication as to their first cause of action for breach of contract and their third cause of action for unjust enrichment.

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 material facts.' (Cal. R. Court, Rule 3.1350(b), emphasis added.) A separate statement must 'separately identify' 1) each issue to be adjudicated and 2) the supporting material facts as to each issue to be adjudicated. (Cal. R. Court, rule 3.1350(d)(1); see also subd. (h).) Here, Plaintiffs' separate statement offers only 'facts common to all of Ronro's causes of action against the Defendants.' The court has construed this as a contention by Plaintiffs that all of the stated facts are material to 1) their request for summary judgment, 2) their request for summary adjudication of their first cause of action for breach of contract, and 3) their request for summary adjudication of their third cause of action for unjust enrichment.

The Motion is Denied as to Plaintiff Michael Rossler As to Plaintiff Michael Rossler, the motion is denied.

On summary judgment, the moving party has both a burden of persuasion and burden of production.

(Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850-51.) Although both Plaintiffs brought this motion, the court notes Plaintiffs offered only 'facts common to all of Ronro's causes of action against the Defendants' in their separate statement. (Pltf. Sep. Stmt. at 2:6.) Plaintiffs offered no facts that might support summary judgment as to Rossler.

Accordingly, the court concludes Plaintiff Rossler has not met his initial burdens of persuasion and production. (Aguilar at pp. 850-51.) Calendar No.: Event ID:  TENTATIVE RULINGS

3041919  4 CASE NUMBER: CASE TITLE:  RONRO ENTERPRISES LLC VS TIL TWO LLC [IMAGED]  37-2020-00019472-CU-BC-CTL Plaintiff Ronro's Motion is Denied as Against the Carballo Defendants The motion is purportedly brought against Defendants Alex and Melissa Carballo, who did not file any opposition to this motion. Nevertheless, the court finds summary judgment cannot be granted against these Defendants because they have already obtained judgment in their favor as to Ronro's claims against them. (ROA 250.) Plaintiff Ronro's Motion is Denied Against Defendants Darling, Koken, and Gomes As against Defendants Julie Rose Darling, Matthew S. Koken, and Delanie Gomes, Plaintiff Ronro has not presented evidence of a written contract between it and any of these individuals. Plaintiff has also offered no legal authority upon which any of these Defendants might be held liable for any of the relevant written agreements it has offered as evidence. Accordingly, Ronro has not met its initial burdens of persuasion and production on its first cause of action for breach of contract against Defendants Darling, Koken, and Gomes, and summary adjudication is denied. (Aguilar at pp. 850-51.) Likewise, Plaintiff Ronro has not presented sufficient evidence of its third cause of action against Defendants Darling, Koken, and Gomes. Accordingly, summary adjudication of Ronro's third cause of action for unjust enrichment against these Defendants is also denied.

Given that Ronro has not presented sufficient evidence on its first and third causes of action, summary judgment against these Defendants is denied as well.

Plaintiff Ronro's Motion is Granted as to its First Cause of Action Against Defendant Til Two and Otherwise Denied Against Til Two Ronro has presented evidence of several contract documents pertaining to its sale of the Til Two Club (hereinafter 'Club'): a Business Purchase Agreement and Seller Financing Addendum and Disclosure identifying 'Alex Carballo or Assignee' as the Buyer, and a Note and Security Agreement identifying Til Two, LLC as the Debtor.

It is undisputed that Til Two was a contracting party on the Note and Security Agreement, which were executed by Alex Carballo as President of Til Two. (Pltf. Sep. Stmt. ¶ 5.) The Club, including its liquor license, were subsequently transferred to Til Two, which initially began making payments consistent with the contract documents for purchase of the Club, including the Note and Security Agreement. (Pltf.

Sep. Stmt. ¶¶ 8-12, 15-16.) There is also evidence of breach of the Note and Security Agreement. It is also undisputed that Til Two stopped making payments in December 2019. (Def. Resp. Sep. Stmt. ¶ 17.) Til Two argues instead that it owes no obligations on the Note and Security Agreement because these are obligations owed by Alex Carballo as an individual only, not the company. There is no evidence, however, that Ronro knew or should have known that Carballo did not have the authority to bind Til Two to this obligation, or that Ronro should be forced to accept less than the contracted-for $230,000 price for sale of the Club that Til Two continues to operate. Til Two also has not cited sufficient legal authority to support a defense on these grounds.

Defendants Til Two, Darling, Koken, and Gomes also assert Alex Carballo deceived them by failing to disclose all of the terms of the purchase of the Club to them. Again, even assuming this is true, Defendants have not offered sufficient legal authority to suggest this renders any of the contracts void or voidable in some way. Moreover, despite Til Two's characterization of the Note and Security Agreement as a 'personal loan' to Alex Carballo, Til Two was plainly the contracting party.

Accordingly, as to Ronro's first cause of action against Til Two, summary adjudication is granted.

As to Ronro's third cause of action for unjust enrichment, the court notes that Ronro relies on the same set of facts as for its breach of contract claim. Where Ronro has contractual remedies, the equitable principles of unjust enrichment do not apply. (See Welborne v. Ryman-Carroll Foundation (2018) 22 Calendar No.: Event ID:  TENTATIVE RULINGS

3041919  4 CASE NUMBER: CASE TITLE:  RONRO ENTERPRISES LLC VS TIL TWO LLC [IMAGED]  37-2020-00019472-CU-BC-CTL Cal.App.5th 719, 725.) Accordingly, summary adjudication of Ronro's third cause of action against Til Two is denied as moot.

Summary judgment against Til Two is also denied, since Ronro failed to demonstrate that it is entitled to relief on its second cause of action, or indeed to address that cause of action at all, and since the court is denying summary adjudication of Ronro's third cause of action.

Defendants' Requests for Judicial Notice Defendants Til Two, Darling, Koken, and Gomes' requests for judicial notice of Til Two's articles of organization, their Cross-Complaint in this action, and the stipulation for preliminary injunction in this action are granted. (ROA 269; Evid. Code § 452(c), (d)(1).) As to Defendants' request regarding Plaintiffs' April 27, 2023, request for dismissal, the court takes judicial notice of this document. (ROA 269; Evid. Code § 452(d)(1).) However, the court notes that this document is not evidence that the Carballos have been dismissed, as Defendants assert. (Def. Resp.

Sep. Stmt. at ¶ 21.) Dismissal was not entered because Plaintiffs failed to submit page 2 of the required judicial council form. (ROA 248, 251.) As noted above, the court has also taken judicial notice of the June 15, 2023 Judgment confirming the arbitration award in favor of the Carballos and against Ronro. (ROA 250.) Evidentiary Objections Defendants Til Two, Darling, Koken, and Gomes' Objections to the Declaration of Michael Rossler (ROA 268) Nos. 1-14 are overruled.

Defendants Til Two, Darling, Koken, and Gomes' Objections to the Declaration of William Rathbone (ROA 267) Nos. 1 and 3 are overruled. No. 2 is sustained on the grounds of lack of foundation and hearsay.

Defendants' Exhibits Where deposition testimony is submitted as an exhibit on a motion, '[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.' (Cal. R.

Court, Rule 3.1116(c).) Defendants' Exhibits A and B failed to comply with this rule. Defendants are to comply with all court rules going forward.

Once confirmed, this ruling shall be the final ruling of the court and no further order is required.

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