Judge: Theresa M. Traber, Case: BC597883, Date: 2023-04-20 Tentative Ruling
Case Number: BC597883 Hearing Date: April 20, 2023 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 20, 2023 TRIAL
DATE: July 5, 2023
CASE: Paul Krzemuski, Trustee of the Violette
Krzemuski aka Violette Adamian 2013 Family Trust v. George Zakharia, et al.
CASE NO.: BC597883 
RENEWED
MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
MOVING PARTY: Plaintiff/Cross-Defendant Paul Krzemuski, Trustee of
the Violet Krzemuski, aka Violette Adamian 2013 Family Trust
RESPONDING PARTY(S): Defendants/Cross-Complainants
George Zakharia and Hoda Zakharia
CASE
HISTORY:
·
10/14/15: Complaint filed.
·
11/16/15: Cross-Complaint filed.
·
04/23/18: Compulsory Cross-Complaint filed.
·
06/07/18: First Amended Cross-Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action to quiet title by adverse possession.
Plaintiff/Cross-Defendant Paul Krzemuski moves for summary judgment on
the first amended cross-complaint.
TENTATIVE RULING:
Plaintiff/Cross-Defendant’s
Renewed Motion for Summary Judgment is DENIED.
Plaintiff/Cross-Defendant’s
Renewed Motion for Summary Adjudication is DENIED.
DISCUSSION:
Plaintiff/Cross-Defendant Paul Krzemuski moves for summary judgment on
the first amended cross-complaint.
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.)
Cross-Complainants’
Evidentiary Objections
Cross-Complainants raise numerous evidentiary objections to the
declarations provided by Cross-Defendant in support of this motion.
//
Declaration of Paul
Krzemuski
Objections Nos. 1-21: OVERRULED. Hearsay is not a valid objection in this
context, given that nonhearsay evidence supporting the statements to which
Cross-Complainants object could be offered at trial. (Sweetwater Union High
School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.).
The remainder of Cross-Complainants’
objections go to weight, not admissibility.
Declaration of Robert
Scott Shtofman
As the Court does not rely on the evidence to which Cross-Complainants
object in ruling on this motion, the Court declines to rule on Cross-Complainants’
objections. (Code Civ. Proc. § 437c(q).)
Declaration of Jacqueline
Wein
As the Court does not rely on the evidence to which Cross-Complainants
object in ruling on this motion, the Court declines to rule on
Cross-Complainants’ objections. (Code Civ. Proc. § 437c(q).)
Defective Service
Cross-Complainants object to this motion as improperly noticed. Notice of
a motion for summary judgment must be served on all other parties to the action
a minimum of 75 days before the hearing. (Code Civ. Proc. § 437c(a)(2).) Here,
Cross-Defendant’s moving papers, filed on April 6, 2023, contain a notice of
motion and a proof of service stating that the notice of motion was served on
February 2, 2023. Cross-Complainants’ counsel states, under penalty of perjury,
however, that the motion papers served on them did not contain a notice of
motion identifying the grounds for the motion. (Declaration of Clay Wilkinson
ISO Opp. ¶ 3, Exh. C.) Instead, the papers served on Cross-Complainants
contained an “Introduction” setting forth the claimed basis for the motion. (Id.)
A comparison of the papers served on Cross-Complainants with the papers filed
with the Court reveals that, although the served papers did not contain a
formal Notice of Motion, the papers are otherwise substantially identical, and
the information set out in the filed Notice of Motion is nearly identical to
the Introduction in the served papers. (Wilkinson Decl. Exhs. C-D.) The Court
therefore finds that, although Cross-Defendant did not serve a procedurally
proper Notice of Motion, this defect was not prejudicial to Cross-Complainants.
Defective
Separate Statement
Cross-Complainants also object to Cross-Defendant’s Separate Statement of
Undisputed Material Fact as non-compliant with the rules of Court. California
Rule of Court 3.1350(b) requires that “[i]f 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. Rule of
Court 3.1350(b) [emphasis added].) Here, Cross-Defendant states seven grounds
for summary judgment in the Notice of Motion, which do not separately identify
each cause of action, claim for damages, or issues of duty on which summary
adjudication is sought, while the Separate Statement raises a different set of fourteen
issues, which also do not separately identify each of action, claim for
damages, or issues of duty on which summary adjudication is sought. Cross-Defendant
has therefore failed to comply with Rule 3.1350(b).
Ordinarily, in the face of a procedurally defective separate statement,
the Court would be inclined to permit the moving party to amend the separate
statement to permit an adjudication of the issues on their merits. However, as
Cross-Defendant has not adequately justified the propriety of this motion under
Code of Civil Procedure section 1008(b), as stated below, the Court does not
find such a measure to be appropriate here.
Timeliness of
Renewed Motion
Cross-Defendant brings this motion
as a Renewed Motion for Summary Judgment under Code of Civil Procedure section
1008. Although the Notice of Motion states that this motion is brought under
section 1008(a), which governs motions for reconsideration, the body of the
motion states that the motion is brought as a renewed motion under subdivision (b),
and the opposition papers address the motion in that light. The Court will
therefore address the motion as a renewed motion under section 1008(b).
Code of Civil Procedure section
1008(b) provides:
A
party who originally made an application for an order which was refused in
whole or part, or granted conditionally or on terms, may make a subsequent
application for the same order upon new or different facts, circumstances, or
law, in which case it shall be shown by affidavit what application was made
before, when and to what judge, what order or decisions were made, and what new
or different facts, circumstances, or law are claimed to be shown. For a
failure to comply with this subdivision, any order made on a subsequent
application may be revoked or set aside on ex parte motion.
(Code Civ. Proc. §
1008(b).) The requirement for a showing of new or different facts,
circumstances, or law is “a strict requirement of diligence.” (See, e.g., Baldwin
v. Home Sav. Of America (1997) 69 Cal.App.4th 1192, 1199.)
In this matter, the Court previously
denied a motion for summary judgment by Cross-Defendant on the original Cross-Complaint.
Cross-Defendant argues that the Court denied summary judgment only as to the
original Complaint and purely procedural grounds, and thus the Court has never
reached the issues presented as to the First Amended Compulsory
Cross-Complaint. Not so. The January 27, 2017 Minute Order was, in fact, a
ruling on the merits of the original Cross-Complaint as well, in which
substantially similar issues were presented. (January 27, 2017 Minute Order;
see also Cross-Complaint, FAXC.)
Cross-Complainant states that he
discovered additional documents at some point after the January 27, 2017
hearing which prompted this motion. It is not clear, however, from
Cross-Complainant’s verified declaration when these documents were discovered.
Cross-Complainant only states that he searched his parents’ belongings in a storage
facility in Acton, California “in March of 2017,” at which point he unearthed
the documents presented. (Declaration of Paul Krzemuski ISO Mot. ¶ 11.) Neither
Cross-Complainant nor his counsel offer any explanation for the six-year
gap between the discovery of these documents and the filing of the renewed motion.
Even construing Cross-Complainant’s testimony concerning the April 6-7, 2017
depositions of Cross-Defendants (¶ 34), the July 5, 2019 correspondence from
First American Title Insurance Company (¶ 38), and the January 13, 2020 Notice
of Levy (¶ 39) as additional necessary evidence, Cross-Complainant still does
not account for the three-year gap between the most recent evidence identified
and the filing of this motion. The Court cannot construe such delay as constituting
the diligence necessary to entitle a party to relief on a renewed motion for
summary judgment.
CONCLUSION:
Accordingly,
Plaintiff/Cross-Defendant’s Renewed Motion for Summary Judgment is DENIED.
Plaintiff/Cross-Defendant’s
Renewed Motion for Summary Adjudication is DENIED.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: April 20, 2023 ___________________________________
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.