Judge: Thomas D. Long, Case: 22STCV07543, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV07543    Hearing Date: March 23, 2023    Dept: 48

























      CASE NO.: 22STCV07543




Dept. 48

8:30 a.m.

March 23, 2023


On March 2, 2022, Plaintiff David Carranza filed this action against Defendants Mohammad Ali Zareh DDS, Inc. (“Dental Office”) and Charles Chan-Eung Park.

On December 28, 2022, Plaintiff filed a motion for summary judgment.

On February 9, 2023, the Court sustained Defendant Dental Office’s demurrer with leave to amend.  Plaintiff did not timely file an amended complaint, so on March 16, 2023, Defendant Dental Office was dismissed with prejudice.

On February 14, 2023, Plaintiff filed a declaration in support of his motion for summary judgment.  On March 14, 2023, Plaintiff filed a reply and a separate statement.


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).)  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)(2).)  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 motion must be denied for at least three reasons.

A.        Defendant Dental Office Has Been Dismissed, and Defendant Park Has Not Appeared.

A motion for summary judgment may be made at any time after 60 days have elapsed since the opponent’s general appearance in the action.  (Code Civ. Proc., § 437c, subd. (a)(1).)

Only Defendant Dental Office has appeared in this action.  After the Court sustained its demurrer to the Complaint and Plaintiff failed to timely file an amended complaint, the Court dismissed Defendant Dental Office with prejudice on March 16, 2023.

Defendant Park has not yet appeared, and as noted in the Court’s February 9, 2023 order, no Proof of Service of the Summons and Complaint has even been filed for Defendant Park.

Accordingly, this motion cannot be directed at Defendant Park, the only remaining defendant in this action.

B.        Plaintiff’s Motion Does Not Include the Required Separate Statement.

Plaintiff’s motion did not include the required “separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.”  (Code Civ. Proc., § 437c, subd. (b)(1).)  This failure is a sufficient ground for denying the motion.  (Ibid.)

Later, after Defendant Dental Office raised this issue in its opposition, Plaintiff filed a separate statement with his reply.  This is improper.  “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.”  (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 (United Community Church).)  “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]”  (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)  “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient.  ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.’”  (United Community Church, supra, 231 Cal.App.3d at p. 335.)  “The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.”  (Id. at p. 337.)

C.        Plaintiff’s Complaint Contains No Factual Allegations.

Even if the Court were to consider Plaintiff’s late separate statement, it cannot support a finding that all material facts are undisputed because the Complaint contains no facts.

The complaint uses a Judicial Council form for an action based in contract.  “The Judicial Council pleading forms have simplified the art of pleading, and have made the task of drafting much easier.  Nevertheless, in some cases more is required than merely placing an ‘X’ in a box.  [Citation.]”  (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 (Dept. of Transportation).)  Item 8 on page 2 of the form complaint states, “The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached).”  Plaintiff checked the boxes for Breach of Contract and Common Counts, but no additional pages are attached.  Plaintiff prays for damages, interest, and “cost for services and products never rendered.”  The complaint contains no facts constituting any causes of action.  (See Code Civ. Proc., § 425.10, subd. (a)(1); see also Dept. of Transportation, supra, 5 Cal.App.4th at p. 1484 [ultimate facts are still required when using a Judicial Council form complaint].)

In ruling on a motion for summary judgment, the Court is bound by the issues framed the complaint.  “The pleadings play a key role in a summary judgment motion.  ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.’”  (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493; Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [“The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’  [Citations.]”].)

Therefore, because the Complaint does not set forth any facts or well-pleaded causes of action, the Court cannot find any issues in Plaintiff’s favor.


Plaintiff’s motion for summary judgment is DENIED.

An Order to Show Cause Re: Dismissal Under Code of Civil Procedure § 436(b) is scheduled for May 9, 2023 at 08:30 AM in Department 48 at Stanley Mosk Courthouse.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.


         Dated this 23rd day of March 2023





Hon. Thomas D. Long

Judge of the Superior Court