Judge: Theresa M. Traber, Case: 20STCV17423, Date: 2022-08-30 Tentative Ruling
Case Number: 20STCV17423 Hearing Date: August 30, 2022 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: September 30, 2022 TRIAL DATE: November
15, 2022
CASE: GEORGE
ELMASSIAN vs JOSEPH A. ELMASSIAN, et al.
CASE NO.: 20STCV17423 
MOTION
FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATON (x2)
MOVING PARTY: (1) Defendant Joseph Elmassian; (2) Defendant Lisa
Elmassian
RESPONDING PARTY(S): (1)(2) Plaintiff
George Elmassian
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for fraud, negligence, elder abuse, and breach of
contract. Iin his May 6, 2020 complaint, Plaintiff alleges that his brother and
his sister-in-law have abused their powers and privileges as managers of an LLC
of which Plaintiff is also a member to defraud Plaintiff and the LLC for
personal gain.
Defendants each move for summary
judgment, or in the alternative, summary adjudication on each cause of action
asserted against them.
TENTATIVE RULING:
Defendants’ motions for summary
judgment are DENIED.
Defendants’ motions for summary
adjudication are DENIED in their entirety.
DISCUSSION:
Plaintiff’s Requests for Judicial Notice
Plaintiff
requests that the Court take judicial notice of Elmassian Real Estate
Investments, LLC’s Certificate of Organization filed with the California
Secretary of State on September 14, 2016. Plaintiff’s request for judicial
notice is GRANTED pursuant to Evidence Code section 452(c) (official acts).
Defendant Joseph Elmassian’s Motion for Summary
Judgment or Summary Adjudication
Defendant
Joseph Elmassian moves for summary judgment or, in the alternative, summary
adjudication on each of the causes of action asserted against him.
Legal Standard
The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party can show evidentiary support for a pleading or claim and, if
not, to enable an order of summary dismissal without the need for trial. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure Section 437c(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.) “The function of the pleadings in
a motion for summary judgment is to delimit the scope of the issues; the
function of the affidavits or declarations is to disclose whether there is any
triable issue of fact within the issues delimited by the pleadings.” (Juge
v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI
Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes,
Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the
evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide,
Inc. (2006) 39 Cal.4th 384, 389.) The lack of opposition by a plaintiff is
not grounds to grant a motion for summary judgment if a defendant cannot meet
their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000)
79 Cal.App.4th 1081, 1087.)
Once the
defendant has met that burden, the burden shifts to the plaintiff to show that
a triable issue of one or more material facts exists as to that cause of action
or a defense thereto. To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Procedural Defects
California Rule of Court 3.1340
requires that the issues that form a basis of a motion for summary adjudication
be stated specifically in the notice of motion and be repeated, verbatim, in
the separate statement. The Notice of Motion does not set forth any
specific issues which form a basis for the motion to be granted, in direct
violation of subdivision (f) of Code of Civil Procedure section 437c and Rule
3.1350(b). (Notice of Motion.) The separate statement and the Memorandum of
Points and Authorities set forth numerous issues that purport to provide a
basis for summary adjudication to be granted. (See, generally, Memorandum of
Points and Authorities; Defendant’s Separate Statement of Undisputed Material
Fact.) As Plaintiff has objected to the motion for summary adjudication as
defective on this basis, the Court cannot overlook these procedural defects.
However, as Defendant has also
moved for summary judgment and has noticed this motion accordingly, the Court
will review the motion as a motion for summary judgment only. Defendant will
therefore be required to show that Plaintiff cannot establish a triable issue
of any material fact with respect to the entire action. (See Code Civ.
Proc. § 437c(c).)
Summary Judgment
Defendant
moves for summary adjudication on each of the fifteen causes of action on the
basis that no triable issue of material fact exists because Defendant did not
commit any of the conduct alleged in the Complaint. Defendant’s sole piece of
evidence in support of this contention is his verified declaration in which he
denies, without stating additional facts or citing to additional evidence, each
of the factual allegations in the Complaint. (See Declaration of Joseph
Elmassian ISO Mot. ¶ 7.) Conclusory statements such as those offered by
Defendant are insufficient to show that Plaintiff cannot prevail on any cause
of action, such that the burden of proof shifts to Plaintiff to show a triable
issue of fact. (See, e.g., Krantz v. BT Visual Images (2001) 89 Cal.App.4th
164, 173.) Defendant has failed to show that Plaintiff cannot prevail on any of
the fifteen causes of action. Therefore, the burden of proof does not shift to
Plaintiff to establish a triable issue of fact.
Accordingly, Defendant Joseph
Elmassian’s Motion for Summary Judgment is DENIED.
Defendant Lisa Elmassian’s Motion for Summary Judgment
or Summary Adjudication
Defendant
Lisa Elmassian moves for summary judgment, or, in the alternative, summary
adjudication of each of the causes of action asserted against her.
Procedural Defects
Defendant Lisa Elmassian has
committed the same procedural errors in presenting her motion for summary
adjudication. As Plaintiff has objected
to the motion for summary adjudication as defective on this basis, the Court
cannot overlook these procedural defects. That said, as Defendant has also
moved for summary judgment and has noticed this motion accordingly, the Court
will review the motion as a motion for summary judgment only. To succeed, Defendant
will be required to show that Plaintiff cannot establish a triable issue of any
material fact with respect to the entire action. (See Code Civ. Proc. §
437c(c).)
Summary Judgment
Defendant raises multiple bases for
summary judgment with respect to the second, third, seventh, ninth, thirteenth,
fourteenth, and fifteenth causes of action. However, Defendant only raises one
basis for summary judgment with respect to the fourth, tenth, eleventh, and
twelfth causes of action. Thus, if Defendant fails to establish that she is
entitled to summary judgment on these four causes of action, Defendant’s motion
will fail in its entirety.
With respect to the second through
fourth, seventh, and ninth through fifteenth causes of action, Defendant
contends that Plaintiff cannot prevail on these causes of action because no
triable issue of fact exists based solely on a declaration that Defendant did
not commit any of the conduct alleged in the Complaint. As in the above motion
for summary judgment, Defendant’s sole evidence in support is a verified
declaration denying, without additional facts or supporting evidence, each of
the allegations in the Complaint. (See Declaration of Lisa Elmassian ISO Mot. ¶
7.) Conclusory statements such as those offered by Defendant are insufficient
to show that Plaintiff cannot prevail on any cause of action, such that the
burden of proof shifts to Plaintiff to show a triable issue of fact. (See,
e.g., Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 173.)
Defendant has failed to show that Plaintiff cannot prevail on these causes of
action. The burden therefore does not shift to Plaintiff to establish a triable
issue of fact.
As Defendant has failed to show
that Plaintiff cannot prevail on the fourth, tenth, eleventh, and twelfth
causes of action, Defendant has not met her burden to show that she is entitled
to summary judgment.
CONCLUSION:
Accordingly, Defendants’ motions for summary
judgment are DENIED.
Defendants’ motions for summary
adjudication are DENIED in their entirety.
Moving Parties to give notice.
IT IS SO ORDERED.
Dated: August 30, 2022 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.