Judge Thomas D. Long, Case Number: 21STCV31512, Date: 2025-04-10 Tentative Ruling

On August 25, 2021, Plaintiff Erin Maddex filed this action against Defendants Alaska USA Federal Credit Union and WC Performance Ford Inc.

On October 5, 2021, WC Performance Ford Inc. filed a cross-complaint against Plaintiff.

Following a ruling on summary judgment, on July 10, 2023, the Court entered judgment in favor of Alaska USA Federal Credit Union.

On January 9, 2025, WC Performance Ford Inc. (“Defendant”) filed a motion to bifurcate equitable and legal issues.

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.)

A plaintiff moving for summary adjudication must satisfy the initial burden of proof by proving each element of a cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) That includes damages when damages are an element. (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.) Then the burden shifts to the defendant to show that a triable issue of material fact exists as to the cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(1).)

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, 162-163.)

Plaintiff’s Objections to Defendant’s Request for Judicial Notice are sustained. The Court cannot take judicial notice of the truth of evidence filed by Alaska USA Federal Credit Union in support of its summary judgment motion. Defendant also cannot use the Court’s ruling on Alaska USA Federal Credit Union’s summary judgment motion as evidence here. “While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. [Citation.] ‘When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.’ [Citation.]” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Plaintiff’s Objection Nos. 1-2, 8-9, 13, 17, 22, 25 to the Declaration of Alexandra Failla are sustained for lack of personal knowledge.

Plaintiff’s Objection Nos. 3-7, 10-12, 14-16, 18-21, 23-24, 26-45 to the Declaration of Alexandra Failla are overruled. The declarant sets forth the basis for her knowledge and ability to authenticate the exhibits.

Plaintiff’s Objection Nos. 46-49, 51-61 to the Declaration of Adam Souccar are overruled. The declarant sets forth the basis for his knowledge and ability to authenticate the exhibits.

Plaintiff’s Objection No. 50 to the Declaration of Adam Souccar is sustained for lack of personal knowledge.

Defendant’s Objections Nos. 1-5, 9-13, 16-17, 20-26 to the Declaration of Patrick Herklotz are sustained for lack of personal knowledge and foundation with respect to the value and legality of the transactions.

Defendant’s Objections Nos. 6-8 to the Declaration of Patrick Herklotz are sustained for lack of personal knowledge of Defendant’s and Plaintiff’s state of mind.

Defendant’s Objections Nos. 14-15, 18-19 to the Declaration of Patrick Herklotz are sustained for lack of personal knowledge.

Defendant’s Objections Nos. 1-6, 11-16, 24-27, 29-31 to the Declaration of Erin Maddex are sustained for lack of personal knowledge and foundation with respect to the value and legality of the transactions.

Defendant’s Objections Nos. 7-10, 17-23, 28 to the Declaration of Erin Maddex are sustained for lack of personal knowledge.

Defendant’s Objections Nos. 1-3, 5-21 to the Declaration of Roger E. Naghash are sustained for lack of personal knowledge.

Defendant’s Objection Nos. 4, 27-29 to the Declaration of Roger E. Naghash are overruled.

Defendant’s Objections Nos. 22-26 to the Declaration of Roger E. Naghash are sustained as irrelevant.

This case arises from the sale of a used white 2020 Ford Mustang, VIN: 1FATP8UH2L5134285 (“Intended Vehicle”) to Plaintiff on or about November 18, 2020 by Defendant. (Undisputed Material Facts “UMF” 1.)

Plaintiff test drove two different 2020 Ford Mustangs that were identical except for a difference in milage. (UMF 2-3.) The Finance Writer prepared contract documents and Used Vehicle Dealer Notice/Temporary Identifications for both Mustangs in anticipation that Plaintiff was going to purchase one of them. (UMF 7-8.) The practice of the dealership is to have the salesman compare the VIN on the temporary ID with the vehicle VIN during the delivery process to ensure the correct vehicle is being delivered. (UMF 10.)

Plaintiff paid $31,043.61 for the Intended Vehicle via a cashier’s check from Alaska USA Federal Credit Union, without any liens. (UMF 6.) The vast majority of credit union checks received by auto dealerships for payment of vehicles are loans to the customer in which the credit union must be placed on title as a lien-holder. (UMF 13.)

Defendant mistakenly delivered the other 2020 Ford Mustang (“Delivered Vehicle”), which Plaintiff left with. (UMF 11, 48; see UMF 32.) The Intended Vehicle had 6,825 miles. (UMF 4.) The Delivered Vehicle had 10,776 miles. (UMF 5.)

Plaintiff alleged in a letter from her attorney and in her Complaint that she discovered the mistake the day after the sale. (UMF 15-16.) The mistaken delivery was not noticed by Defendant until early February 2021. (UMF 17.) In early February 2021, a Performance Ford customer attempted to purchase the Intended Vehicle, which was still for sale on Defendant’s lot. (UMF 18.) Upon entering the VIN for the vehicle into the dealership’s computer system in anticipation of writing up the contract documents, the Intended Vehicle showed up in the system has already having been sold to Plaintiff. (UMF 18.)

On February 5, 2021, the dealership sent Plaintiff an email asking her to call the dealership to have a VIN verification performed. (UMF 19.) On February 27, 2021, the dealership called Plaintiff three times. (UMF 20.) On March 12, 2021, Defendant sent a Certified Letter to Plaintiff asking her to contact the dealership so that the VIN on her vehicle could be verified. (UMF 21.) On or about May 6, 2021, Defendant again made two attempts to reach Plaintiff via telephone, leaving voice messages. (UMF 23.)

On or about May 7, 2021, Plaintiff finally responded via email, writing that she had heard from the credit union regarding the erroneous effort to place a lien on the vehicle and demanding rescission of the contract. (UMF 24.) That day, there were eight phone calls between the parties. (UMF 25.) Plaintiff sent to Defendant a letter that she had received from the credit union stating that they had attempted to release the lien. (UMF 26.)

The dealership was not paid twice for the Intended Vehicle and received no benefit from the mistaken delivery or the error in processing the vehicle registration. (UMF 27.) The Intended Vehicle was not a stolen vehicle. (UMF 41.)

Plaintiff as maintained possession of the Delivered Vehicle since November 18, 2020, despite Defendant’s demand for its return to them. (UMF 44; see UMF 46.) The Delivered Vehicle has depreciated in value by $7,460. (UMF 45.)

Plaintiff alleges that Defendant breached the sales contract because it failed to deliver the Intended Vehicle. (Complaint ¶¶ 20-28.)

Defendant argues that there was no breach of a contract because delivery of the wrong vehicle was a mutual mistake of fact obviating the necessary requirements for a contract. (Motion at p. 6.) Both parties believed that Plaintiff received the Intended Vehicle, and the Retail Instalment Sales Contract was written up with the correct information and correct VIN number. (Id. at p. 7.) “Once the Court adjudicates that there was a mutual mistake of fact and the contract fails, then it can hear argument later on which remedy – rescission or reformation – is appropriate. (Ibid.)

“Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or, 2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed.” (Civ. Code, § 1577.)

“In California a mutual mistake, whether of fact or law, which affects an essential element of the contract and is harmful to one of the parties is subject to rescission by the party harmed.” (Guthrie v. Times-Mirror Co. (1975) 51 Cal.App.3d 879, 884.) “Mistake is said to fall generally into two categories: (1) A person may know the specific facts upon which his rights depend but be ignorant of the rules of law the courts will apply to those facts, or (2) a person may know the applicable legal rules but be mistaken as to the specific facts to which the rules are to be applied.” (Id. at pp. 580-581, footnote omitted.) “The doctrine of mistake customarily involves such errors as the nature of the transaction, the identity of the parties, the identity of the things to which the contract relates, or the occurrence of collateral happenings.” (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 130.)

Here, there was no mistake of fact when the parties executed the contract. The parties intended for Plaintiff to purchase the Intended Vehicle from Defendant, and they intended for Defendant to deliver the Intended Vehicle. The sales contract was for a 2020 Ford Mustang with 6,825 miles, with a VIN ending in 34255—the Intended Vehicle. (Failla Decl., Ex. 3; UMF 1, 4.) Instead, Defendant mistakenly delivered the wrong vehicle to Plaintiff. This is a mistake made in the course of Defendant’s performance—not a mutual mistake of fact about an aspect of the agreement.

Defendant has not met its initial burden of showing that there was no valid contract (and thus no breach of contract) due to mutual mistake of fact.

D. There Is No Special Relationship for the Breach of Implied Covenant of Good Faith and Fair Dealing.

Defendant argues that Plaintiff failed to plead facts establishing a special relationship that would support a breach of the implied warranty of good faith and fair dealing. (Motion at pp. 8-9.)

“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. The covenant thus cannot ‘“‘be endowed with an existence independent of its contractual underpinnings.’”’ [Citation.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.) “[T]ort recovery for breach of the covenant [of good faith and fair dealing] is available only in limited circumstances, generally involving a special relationship between the contracting parties, such as the relationship between an insured and its insurer.” (Bionghi v. Metropolitan Water Dist. of So. California (1999) 70 Cal.App.4th 1358, 1370.) “Because the covenant of good faith and fair dealing essentially is a contract term that aims to effectuate the contractual intentions of the parties, ‘compensation for its breach has almost always been limited to contract rather than tort remedies.’ ” (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43.)

Plaintiff’s claim is based upon the parties’ contractual relationship. (Complaint ¶¶ 30-34.) A contract or debt does not constitute a trust or create a fiduciary relationship, and “[a]s a general rule, courts finding no fiduciary duty have done so ‘where other legal relationships clearly existed between the parties which “covered” the transaction in suit and which were inconsistent with the existence of fiduciary duty.’ [Citation.]” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 633-634.)

In opposition, Plaintiff cites a portion of Defendant’s website: “Thank You for Choosing Performance Ford We would like to welcome you to our West Covina Ford dealership. We offer a full selection of new Ford vehicles, and reliable pre-owned models. The automotive industry can be complicated. Your car has a lot of moving parts that will eventually need service, and if you’re trying to find a new vehicle, you might be put off by just how complicated financing can be. When you need a dealership that will work with you, you can visit us at Performance Ford. Once you arrive, we’ll be able to help you with any problem that you might be having . . .” (Response to UMF 31; Naghash Decl., Ex. D.) This does not suggest any special or fiduciary relationship that supports a claim for breach of implied covenant.

Summary adjudication of the second cause of action is granted in favor of Defendant.

E. There is No Triable Issue of Fact Regarding Defendant’s Intent to Defraud.

Defendant argues that there was no intent to defraud, and there was just a mistake. (Motion at pp. 9-11.)

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. [Citations.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) Fraud based on concealment requires that “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.)

Plaintiff alleges that Defendant falsely represented that “a. Defendants would deliver the possession of the Subject Vehicle to Plaintiff, Maddex; [¶] b. The Subject Vehicle was the vehicle that parties agreed upon for Plaintiff, Maddex to purchase; [¶] c. The Subject Vehicle would be delivered to Plaintiff, Maddex without any delay, conditions, or demands; and [¶] d. Others.” (Complaint ¶ 38; see Complaint ¶ 39.)

Defendant provides evidence that it did not intend to defraud Plaintiff, and instead, the incorrect delivery was due to mistake. (See UMF 32-33.)

Plaintiff argues, “Defendant charged Plaintiff the price for higher valued vehicle and pledged its title for an unlawful auto loan that Plaintiff never requested, never authorized, and never consented to obtaining. Defendant, delivered the lower valued vehicle with full and complete intent to deprive her money and right to purchase the higher valued vehicle. There was NO mistake.” (Opposition at p. 22.) Plaintiff speculates and cites no admissible evidence that creates a triable issue of fact about Defendant’s intent.

Summary adjudication of the third cause of action is granted in favor of Defendant.

F. There is No Triable Issue of Fact Regarding Negligence and Application of the Economic Loss Rule.

Defendant argues that the economic loss rule bars the claim for negligence. (Motion at pp. 11-12.)

Under the economic loss rule, “[w]here a purchaser’s expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only ‘economic’ losses.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (Robinson), quotation marks omitted.) However, tort damages may be permitted when the breach of contract is accompanied by a tort such as fraud. (Id. at pp. 989-990.) To plead around the economic loss rule, a party must plead the existence of a duty that arises independent of any contractual duty and independent injury, other than economic loss, that arises from the breach of that duty. (Id. at pp. 988-991.)

Plaintiff alleges that Defendant breached its duty of care to Plaintiff “by failing to deliver the possession of the Subject Vehicle to Plaintiff, Maddex, and claiming lien against the title of the Subject Vehicle and falsely encumbering the title of the Subject Vehicle.” (Complaint ¶ 50.) Plaintiff sustained damages from “purchasing a vehicle by means of cash payment without delivering the Subject Vehicle to Plaintiff, Maddex and Defendants reporting and claiming lien against title of the Subject Vehicle.” (Complaint ¶ 51.) These are damages that rise from Defendant’s alleged breach of contract. There is no independent duty or independent loss.

Plaintiff argues that Defendant “was negligent in providing similar car for test drive, charging for higher valued vehicle and delivering the lower valued vehicle, and recording an unlawful and unauthorized lien against the title of the Subject Vehicle, creating a false and fictitious auto-loan, reporting the false and fictitious auto-loan to California Department of Motor Vehicle and falsely publishing that it holds a valid and authorized lien against the title of the vehicle purchased by Plaintiff, Maddex.” (Opposition at pp. 23-24.) This does not create a triable issue about “a duty that arises independent of any contractual duty and independent injury, other than economic loss, that arises from the breach of that duty.” (Robinson, supra, 34 Cal.4th at pp. 988-991.)

Summary adjudication of the fourth cause of action is granted in favor of Defendant.

G. There is No Triable Issue of Fact Regarding Outrageous Conduct Causing Severe Emotional Distress.

The fifth cause of action alleges both intentional and negligent infliction of emotional distress arising from the same conduct as the other causes of action.

Defendant argues that “[t]he Negligent Infliction of Emotional Distress is nothing more than another Negligence claim and the Court should render summary adjudication in Defendant's favor for the reasons discussed above. (Motion at pp. 12.) “[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. [Citation.]” (Potter v. Firestone Tire &Rubber Co. (1993) 6 Cal.4th 965, 984-985.) As discussed with the fourth cause of action, Plaintiff does not raise any triable issue of material fact regarding negligence.

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) When a plaintiff does not suffer physical injury, the conduct must involve “extreme and outrageous intentional invasions of one’s mental and emotional tranquility.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498.) “While the outrageousness of a defendant's conduct normally presents an issue of fact to be determined by the trier of fact [citation], the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. [Citation.]” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

This cause of action is based on the same conduct alleged in the other causes of action. Plaintiff’s opposition confirms that the emotional distress occurred when Defendant “knowingly made false and fraudulent loan application on behalf of Plaintiff, as well as false retail sales agreement in violation of Cal. Veh. Code § 20. In addition, Defendant, WCPF has refused and continue[s] to refuse to deliver the title and registration of Plaintiff’s vehicle in violation of Cal. Veh. Code § 5753.” (Opposition at p. 25.) Defendant “directed Plaintiff to take two white Ford Mustang for test drive (one with higher value and another with lower value). Plaintiff selected and purchased the higher valued vehicle. Defendant, WCPF intentionally and through its Bait-and-Switch fraud, delivered the lower valued vehicle, while receiving the price for higher valued vehicle.” (Ibid.) Defendant also acted as an agent of Alaska USA Federal Credit Union and “processed an authorized auto loan in the name of Plaintiff, Maddex and forwarded it to Defendant, Alaska USA Federal Credit Union, who verified the fictitious loan to Plaintiff, Maddex, and placed a lien on the title of the vehicle purchased by Plaintiff, Maddex.” (Id. at pp. 25-26.) Defendant then “forwarded the evidence of false and fictitious loan to California Department of Motor Vehicle, who published the fictitious and false loan against the title of the vehicle purchased by Plaintiff, Vehicle.” (Id. at p. 26; see id. at p. 27.)

As discussed with the fraud cause of action, there is no triable issue of material fact regarding Defendant’s intent to fraud and there being “Bait-and-Switch fraud.” Mistakenly delivering the incorrect vehicle and mistakenly placing the credit union on the title as a lienholder is not extreme and outrageous conduct.

Summary adjudication of the fifth cause of action is granted in favor of Defendant.

Defendant argues that the vehicles were not stolen and Penal Code section 496 does not apply. (Motion at p. 14.)

Penal Code section 496 applies when a person “buys or receives any property that has been stolen or has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained.” (Penal Code, § 496, subd. (a).) The purpose of this statute was “‘to dry up the market for stolen goods.’ [Citation.]” (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1136 (Siry Investment).) “Because imposing treble damage in cases alleging fraud, misrepresentation, breach of fiduciary duty and other torts outside the context of stolen property does nothing to advance the legislative purpose to dry up the market for stolen goods,” the statute does not apply broadly to torts involving the improper diversion of cash through fraud, misrepresentation, and breach of fiduciary duty. (Id. at p. 1137, quotation marks omitted.)

Plaintiff alleges that Defendant “misrepresented material fact to Plaintiff, Maddex to obtain title of her money under false pretenses of allegedly selling her a vehicle without delivering physical possession of the Subject Vehicle, with the lien on the title of the Subject Vehicle, even though, Plaintiff, Maddex had paid to Defendants the agreed upon purchase price by means of cash payment.” (Complaint ¶ 61.) Plaintiff argues that Defendant “obtain[ed] title and possession to her money by charging her for higher valued vehicle and delivering lower valued vehicle and pledging the title of the Subject Vehicle as a security for an unlawful and unauthorized auto loan.” (Opposition at p. 28.)

The Intended Vehicle was not a stolen vehicle. (UMF 41.) To the extent that Plaintiff alleges that Defendant received her money for the incorrect vehicle and thus stole her money, that is not basis for a claim under the Penal Code. (See Siry Investment, supra, 45 Cal.App.5th at p. 1137.)

Summary adjudication of the sixth cause of action is granted in favor of Defendant.

Defendant moves for summary adjudication of its cross-complaint’s claim for conversion. (Motion at pp. 15-16.) Defendant alleges that Plaintiff has “improperly detained” the Delivered Vehicle despite Defendant’s demands for its return in February 2021. (Cross-Complaint ¶ 21.)

Conversion requires (1) plaintiff’s ownership or right to possession of personal property, (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

It is undisputed that Plaintiff’s purchase was for the Intended Vehicle, not the vehicle that she has in her possession. (See UMF 1, 4, 6.) During the time that Plaintiff has retained possession of the Delivered Vehicle, it has depreciated in value by $7,460. (UMF 45.)

Defendant does not explain how it has suffered these damages while the Delivered Vehicle has remained in Plaintiff’s possession and there is no indication whether they will reclaim the vehicle at its reduced value. “The detriment caused by the wrongful conversion of personal property is presumed to be . . . [t]he value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and . . . [a] fair compensation for the time and money properly expended in pursuit of the property.” (Civ. Code, § 3336; see also Myers v. Stephens (1965) 233 Cal.App.2d 104, 116.)

Additionally, Defendant acknowledges that Plaintiff “argues that she is entitled to maintain Mustang #2 as ‘security.’” (Motion at p. 15.) Defendant has not returned Plaintiff’s payment for the Intended Vehicle. On these facts, there remain disputed about whether Plaintiff’s possession of the Intended Vehicle is wrongful or whether she has valid defenses, especially in light of Plaintiff’s still-pending breach of contract claim.

There are triable issues of fact regarding Defendant’s damages and whether Plaintiff’s possession is wrongful and inconsistent with Defendant’s rights.

Summary adjudication of the Cross-Complaint’s first cause of action is denied.

Defendant argues that “[t]here is an obvious dispute between the parties on the rights and liabilities arising out of the purchase agreement which was entered between them. The uncontradicted evidence shows that there was a mutual mistake of fact from which the Court can declare that the Contract is void and of no effect due to lack of consent arising from the mutual mistake.” (Motion at p. 16, citations omitted.) Defendant contends that “the issue of the appropriate equitable remedies can be determined by the Court in further proceedings.” (Ibid.)

There remains a dispute over Plaintiff’s breach of contract claim and Defendant’s conversion claim.

Summary adjudication of the Cross-Complaint’s second cause of action is denied.

Plaintiff requests a continuance of the hearing so she can complete discovery. (Opposition at pp. 29-30.)

If affidavits submitted in opposition to a motion for summary judgment show that facts essential to justify opposition may exist but cannot be presented, the Court shall deny the motion or order a continuance to permit additional discovery. (Code Civ. Proc., § 437c, subd. (h).) “[A] party who seeks a continuance under section 437c, subdivision (h), must show why the discovery necessary to oppose the motion for summary judgment or summary adjudication could not have been completed sooner.” (Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 156.) “[L]ack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing. Although the statute does not expressly mention diligence, it does require a party seeking a continuance to declare why ‘facts essential to justify opposition . . . cannot, for reasons stated, then be presented’ (§ 437c, subd. (h), italics added), and courts have long required such declarations to be made in good faith. . . . There must be a justifiable reason why the essential facts cannot be presented.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 (Cooksey).)

Plaintiff states that she “has propounded additional discovery requests to Defendant, Alaska USA Federal Credit Union. The statutory time for Defendant, Alaska USA Federal Credit Union shall expire on May 31, 2023, which may need to be followed up by deposition.” This date passed almost two years ago. Alaska USA Federal Credit Union is no longer a party after obtaining judgment on July 10, 2023.

Counsel’s declaration does not show that facts essential to justify opposition may exist but cannot be presented. Counsel declares: “There are clear and unmistakable evidence that Defendant falsely and intentionally, delivered lower valued vehicle to Plaintiff, encumbered the title of Plaintiff, Maddex’s purchased vehicle and placed a lien without her consent and authorization, and refused and continued to refuse to refund her purchase price. There are documented evidence that clearly show Defendants submitted false documents to California Department of Motor Vehicle to place a lien against the title of the vehicle purchased by Plaintiff, Maddex. Accordingly, continuance is necessary to obtain the withheld admissions and evidence.” (Naghash Decl. ¶ 34.) This does not explain what facts may exist and why Plaintiff has not obtained the required evidence. If Plaintiff does not yet have all evidence, then Plaintiff has not been diligent in prosecuting her case since August 25, 2021, especially in light of the forthcoming May 12, 2025 jury trial. (See Cooksey, supra, 123 Cal.App.4th at p. 257.)

Moreover, the discovery deadline has passed, and it was not continued when the trial date was continued.

Summary adjudication of the Complaint’s second, third, fourth, fifth, and sixth causes of action is GRANTED in favor of Defendant.

The Court may order a separate trial of any cause of action or any separate issue in furtherance of convenience or when separate trials will be conducive to expedition and economy. (Code Civ. Proc., § 1048, subd. (b).) The Court may also order the trial of an issue to precede the trial on another issue. (Code Civ. Proc., § 598.)

Defendant asks the Court to “first resolve the equitable issues arising from Defendant’s Declaratory Relief Action and the inherent equitable defenses of rescission and reformation arising from Plaintiffs Breach of Contract action.” (Motion at p. 2.) These equitable issues are inherently intertwined with the legal issues for breach of contract. Separate trials on equitable defenses and the existence of a breach will complicate the proceedings and not conserve resources.

Plaintiff’s oppositions contain numerous inflammatory and unwarranted statements about Defendant, opposing counsel, and the Court. For example:

· “In recent days, Defendant and Cross-Defendants have filed motions for Summary Judgment/Adjudication and Bifurcations, based on pure and blatant fabrications, lies, fraud, and deceptions.”

· “It is necessary to conduct discovery to obtain true facts from these useless criminals.”

· “As expected and consistent with his deceptive and dishonest behaviors and conduct, Long denied Plaintiffs ex parte motion without prejudice.”

· “In their frivolous, fraudulent, worthless and nonsensical motions for Summary Judgment . . .”

None of Plaintiff’s inflammatory and unwarranted statements advanced her arguments or were relevant to any issues. Demeaning comments to or about opposing counsel or parties are contrary to counsel’s ethical obligations of civility, professional integrity, candor, and cooperation. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1536-1537.) This Court’s Local Rules specifically forbid such remarks: “Neither written submissions nor oral presentations should disparage the intelligence, ethics, morals, integrity or personal behavior of one’s adversaries, unless such things are directly and necessarily in issue.” (LASC Local Rules, Appendix 3.A, § (c)(2).)

“‘[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.’ [Citation.] Indeed, unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 412.)

“[W]e cannot allow the tone of the briefing to pass without comment. . . . Appellant targets both respondent and its counsel in the same freewheeling, unprofessional manner. None of these statements were necessary. None of the vitriol advanced the legal arguments in this case. To the contrary, this incivility created an unnecessary distraction to both opposing counsel and this court. [¶] Emotional diatribes do nothing to support the arguments made by counsel. In fact, this verbiage serves the opposite purpose. It requires the court to spend additional resources filtering out the hyperbole, and requires opposing counsel to bill their client for additional time to compose a response. [¶] Ad hominem attacks and other invective detract from counsel’s legal arguments, signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel’s clients deserve. When counsel resort to name-calling and to unsupported claims of misconduct, they risk obscuring any meritorious arguments they may have. Appellant’s counsel would be well advised to refrain from incivility in the future.” (WasteXperts, Inc. v. Arakelian Enterprises, Inc. (2024) 103 Cal.App.5th 652, 666-667.)

If any party or counsel engages in subsequent incivility, the Court may set an Order to Show Cause Re: Imposition of Sanctions Under CCP §§ 128 or 128.5(a).

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court