Judge: Robert P. Dahlquist, Case: 37-2022-00018792-CU-BC-NC, Date: 2023-08-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 07, 2023

08/08/2023  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2022-00018792-CU-BC-NC GEIST VS CIELO HOMEOWNERS ASSOCIATION, INC. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/23/2023

Plaintiffs Christopher Geist and Tracy Geist's motion for summary adjudication (ROA # 41) is denied.

Plaintiff's request for judicial notice dated June 23, 2023 (ROA # 44) is granted. The court takes judicial notice of the existence and legal effects of the referenced exhibits. See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063 ['While courts may notice official acts and public records, 'we do not take judicial notice of the truth of all matters stated therein.''].

The Court rules on defendant's evidentiary objections (ROA # 52) to the declaration of Christopher Geist (ROA # 46) as follows: Objection #1: overruled Objection #2: overruled Objection #3: sustained Objection #4: sustained Objection #5: overruled as to the first sentence. Sustained as to the second sentence.

Objection #6: overruled Objection #7: overruled Objection #8: overruled as to everything up to '(ARC).' Sustained as to the remainder.

Objection #9: sustained Objection #10: overruled Objection #11: overruled Objection #12: overruled Objection #13: overruled Objection #14: overruled Objection #15: overruled Objection #16: overruled Objection #17: sustained Objection #18: sustained Objection #19: overruled Objection #20: sustained as to the assertion that the HOA's conduct was 'unlawful' and as to the reference to the 'clear language of the CC&R's.' Otherwise, overruled.

The Court overrules plaintiffs' evidentiary objections (ROA # 56) to the declaration of Michael Pallamary (ROA # 53).

Calendar No.: Event ID:  TENTATIVE RULINGS

3003128 CASE NUMBER: CASE TITLE:  GEIST VS CIELO HOMEOWNERS ASSOCIATION, INC. [IMAGED]  37-2022-00018792-CU-BC-NC In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party has shown facts justifying a judgment in movant's favor; and (3) determine whether the opposing party has demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83.

In ruling on a summary adjudication motion, the court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97. Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.

In order to prevail on a breach of contract claim, plaintiffs must establish: (1) the existence of a contract; (2) plaintiffs' performance or excuse for nonperformance; (3) defendants' breach; and (4) resulting damage. Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1391 n.

6.

Plaintiffs' complaint alleges that plaintiffs have been damaged by defendant's alleged breach of contract 'in an amount to be proven at trial.' (ROA # 1, at page 8) Plaintiffs' separate statement does not establish the amount of plaintiffs' alleged damages. Plaintiffs' separate statement indicates that plaintiffs have 'suffered damages consisting of overpayments to the HOA by approximately $76,780 to date.' (ROA # 43, fact # 30) The court may summarily adjudicate a claim for an approximate amount of damages. A judgment needs to identify the precise amount of damages.

A plaintiff may not obtain summary adjudication of liability only, leaving the resolution of the amount of damages to be determined by a later trial. Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226.

Because plaintiffs' moving papers do not establish the amount of damages, plaintiffs have failed to sustain their initial burden of showing their entitlement to a judgment on their cause of action for breach of contract. The motion must be denied on this basis.

In addition, as an alternative basis for ruling on this motion, the motion must be denied because defendant has properly disputed several of the facts contained in plaintiffs' separate statement of facts.

The inclusion of a fact in the moving party's separate statement concedes that the fact is material. Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 252.) As such, if a triable issue is raised as to any facts in the separate statement with respect to an issue, then the motion must be denied. Id.; see also Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal. App. 5th 506, 521.

Plaintiffs' separate statement of undisputed material facts contains 32 facts. Defendant purports to dispute 24 of plaintiffs' 32 facts. (ROA # 43 and 50) Some of defendant's responses to the 24 facts are not on point. But defendant has nevertheless identified some facts that are properly disputed. (ROA # 50) Those facts include, at a minimum, fact # 8, 9, 10, 14 and 15. The conflicting evidence showing the existence of disputed facts is cited in the separate statements (ROA # 43 and 50) That evidence consists of the declarations of Geist (ROA # 46), Englert (ROA # 47) and Pallamary (ROA # 53).

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Tuesday, August 8, 2023. If no party appears at the hearing, this tentative ruling will become the order of the Court as of August 8, 2023. If the parties are satisfied with the Court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the Court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3003128 CASE NUMBER: CASE TITLE:  GEIST VS CIELO HOMEOWNERS ASSOCIATION, INC. [IMAGED]  37-2022-00018792-CU-BC-NC Calendar No.: Event ID:  TENTATIVE RULINGS

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