Judge: Stephen I. Goorvitch, Case: 20STCV48123, Date: 2023-05-08 Tentative Ruling

Case Number: 20STCV48123    Hearing Date: May 8, 2023    Dept: 39

Millinium Properties, Inc. v. Aaron Hoh Yin Shum, et al.

Case No. 20STCV48123

Motion for Summary Judgment

            Plaintiff Millinium Properties, Inc. (“Plaintiff” or “Millinium”) filed this action against Aaron Hoh Yin Shum, Taksang Allen Shum, and Connie Moling Chan (collectively, “Defendant”) based upon a failed real estate transaction.  Plaintiff alleges that it entered into a written real estate contract to purchase a property in Walnut, California for $480,000.  Plaintiff alleges that Defendants failed to complete the transaction and deliver the property to Plaintiff.  Accordingly, Plaintiff asserts three causes of action: (1) Breach of contract, (2) Declaratory relief, and (3) Specific performance.  Now, Defendants move for summary judgment or, in the alternative, summary adjudication. 

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

The elements of a breach of contract claim are as follows: (1) There was a valid contract; (2) Plaintiff performed all requirements under the contract or performance was excused; (3) Defendants breached the contract; and (4) Plaintiff was damages as a result of the breach.  (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)  Defendants proffer evidence that Plaintiff did not deposit $1,000 in earnest money, as required by the contract.  Defendants rely on a declaration from Melissa Solgonick, the escrow officer, stating that she sent introductory emails to Plaintiff and the seller, Defendant Connie Moling Chan, concerning escrow.  (Declaration of Melissa Solgonick, ¶ 4.)  Solgonick never received the earnest money deposit from Plaintiff and never communicated with her concerning the issue.  (Id., ¶ 5.)  Therefore, the sale did not proceed.  (Id., ¶ 6.)  Defendants also rely on a declaration from Defendant Connie Moling Chan stating that Plaintiff never deposited the earnest money.  (Declaration of Connie Moling Chan, ¶¶ 5, 14.)  This evidence is sufficient to satisfy Defendants’ burden on summary judgment, shifting the burden to Plaintiff to proffer sufficient evidence to give rise to a triable issue. 

Plaintiff does not dispute that it never paid the earnest money.  Instead, Plaintiff argues that it was not required to do so because Defendants breached the contract before the earnest money was due.  Plaintiff’s counsel argues that Defendants were required to deliver the property vacant and free from debris at the close of escrow.  Plaintiff relies on the declaration of Mike Dusi, which states: “Shortly after November 2, 2020, I received a text from Ms. Chan stating in writing that she was not able to deliver the property vacant, she could not fulfill her obligations under the contract, that she accepted responsibility and she cancelled the agreement.”  (Declaration of Mike Dusi, ¶ 8.)

This does not give rise to a triable issue for two reasons.  First, the Court sustains Defendants’ objection to Dusi’s declaration under Evidence Code sections 1521 and 1523, as his declaration does not establish a foundation for admissibility.  Second, in the alternative, Plaintiff’s counsel is incorrect in his argument that Defendants’ breach occurred before the earnest money was due.  To the contrary.  The parties’ real estate purchase agreement states that the earnest money deposit of $1,000 must be “included with” the signed contract.  The contract was signed by all of the parties together on October 17, 2020, and the alleged breach by Defendants did not occur until November 2, 2020.  Therefore, Plaintiff had already failed to perform a contractual obligation when Chan raised the issue.  The Court has considered Plaintiff’s remaining arguments and finds none to be persuasive.   Therefore, the Court grants Defendants’ motion for summary judgment.   

Defendants filed a cross-complaint against Plaintiff seeking a declaration that “Millinium breached the Purchase Contract such that Defendants/Cross-Complainants do not have to proceed with the sale . . . .”  The Court’s order on Defendants’ motion for summary judgment appears to resolve this issue.  An action for declaratory relief is improper under the circumstances:  

            The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action.  The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.

(General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)  Therefore, the Court issues an Order to Show Cause why the Court should not dismiss the cross-complaint without prejudice in light of the Court’s ruling on the motion for summary judgment. 

Based upon the foregoing, the Court orders as follows:

1.         The Court grants Defendants’ motion for summary judgment.

2.         The Court advances and vacates the final status conference and trial dates.

3.         The Court shall hold a hearing on its Order to Show Cause why the cross-complaint should not be dismissed without prejudice.  The hearing shall be held on May 26, 2023, at 8:30 a.m. at the following location:

Stanley Mosk Courthouse

111 North Hill Street

Department #39 (Goorvitch, J.)

Los Angeles, California 90012

The Court orders the parties to appear but authorizes remote appearances.  Defendants’ counsel may file a response on or before May 18, 2023.  The Court provides notice that absent good cause, the Court intends to dismiss the cross-complaint without prejudice. 

            4.         Should the Court decide not to dismiss the cross-complaint, the Court shall hold a trial setting conference on May 26, 2023, at 8:30 a.m.  Any party who does not appear at the hearing shall waive the right to be heard on the scheduling of the trial and any related dates. 

            5.         The Court’s clerk shall provide notice.