Judge: Ronald F. Frank, Case: 20TRCV00671, Date: 2023-01-26 Tentative Ruling

Case Number: 20TRCV00671    Hearing Date: January 26, 2023    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 January 26, 2023¿ 

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CASE NUMBER:                  20TRCV00671

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CASE NAME:                        Vatche Cabayan v. Petri Entertainment, LLC, et al

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MOVING PARTY:                Defendants, Petri Entertainment, LLC and WarnerDavis

RESPONDING PARTY:       None

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TRIAL DATE:                        March 1, 2023  

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MOTION:¿                              (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication

¿ Tentative Rulings:                 (1)  CONTINUE hearing if (a) Defendant will re-brief the case in compliance with the page limits required by the Rules of Court, (b) Defendant will re-submit objections that comply with CRC 3.1454(b), and (c) Plaintiff satisfies the Court that evidence exists to support an opposition but further discovery is needed to present such evidence per CCP § 437c(h).  The Trial would also need to be continued.  Counsel should have their calendars ready to discuss these matters

I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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On September 25, 2020, Vatche Cabayan (“Plaintiff”) filed a complaint against Petri Entertainment, LLC and Warner Davis (collectively “Defendants” for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, and (3) declaratory relief.

On December 22, 2020, plaintiff filed a FAC for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) money had and received, (4) failure to return deposit, and (5) declaratory relief.

In the FAC, plaintiff alleges that in November 2017, plaintiff and defendant Petri entered into an agreement in which plaintiff agreed to deposit plaintiff’s own funds in the sum of $1.6 million into Petri’s account at Chase Bank and, in exchange, Petri agreed, among other things, (1) to return the full deposit to plaintiff within 122 days, and (2) not to withdraw the deposit at any time, whether in whole or in part, except to return the deposit in full to plaintiff. (FAC, ¶14.) The terms of the agreement between plaintiff and Petri are in a writing entitled Depositor Funding Agreement, attached as Exhibit A to the FAC. (Id., ¶15.) While the version of the agreement attached contains only plaintiff’s signature, Petri countersigned the agreement at or about the same time as plaintiff signed it. (Id., ¶16.) The purpose of plaintiff’s deposit with Petri was to facilitate, in some manner, Petri’s acquisition of financing from entities known as WeatherVane Productions, Inc. and Forrest Capital Partners, Inc., for the production of an independent film. (Id., ¶17.)

B. Procedural¿¿ 

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On November 14, 2022, Defendants filed their Motion for Summary Judgment. On January 13, 2023, Plaintiff filed an opposition. On January 23, 2023, Defendants filed a reply brief.

II. EVIDENTIARY OBJECTIONS

Defendants have submitted 96 evidentiary objections to Plaintiff’s evidence in opposition to the Motion, none of which comply with CRC 3.1454(b). In some instances, Defendants assert an objection but then indicate “no objection,” leaving the Court to wonder whether an objection is asserted or not.  Defendants also fail to “state the exhibit, title, page, and line number of the material objected to” (CRC 3.1354 (b)(3)); and Defendant fails to “quote or set forth the objectionable statement or material” (CRC 3.1354 (b)(4)). Accordingly, all of the objections are denied, without prejudice to a more proper assertion of objections if the hearing is continued. 

III. CONTINUANCE ANALYSIS¿ 

            As a preliminary matter, Defendants have violated California Rule of Court 3.1113 (d). “In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” (CRC 3.1113(d).) Here, Defendants’ moving papers include a memorandum of points and authorities that is thirty-six (36) pages, nearly doubling the twenty (20) page limit. Additionally, California Rule of Court 3.1113(d) also establishes that “[n]o reply or closing memorandum may exceed 10 pages.” (CRC 3.1113(d).) Here, Defendants have filed a reply brief that is twenty-four (24) pages long, more than double the permissible limit.   The Court will consider continuing the hearing if Defendants offer to re-submit briefs that comply with the Rules of Court.    

            As another preliminary matter, the Court notes that Plaintiff asserts that discovery is not yet concluded in this case, that Devis’ deposition has not been concluded, that Chase’s deposition has not yet been taken, and that witness Mr. McConely is presently in prison.  Code of Civil Procedure § 437c(h) empowers the Court to order a continuance of a summary judgment motion hearing to allow additional discovery to be conducted where it appears that facts essential to support an opposition exist but have been unable to be presented.