Judge Timothy B. Taylor, Case 37-2021-00022774-CU-FR-CTL 2023-09-01 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00022774-CU-FR-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Fraud Summary Judgment / Summary Adjudication (Civil) 37-2021-00022774-CU-FR-CTL DILONARDO VS IMPACT ACTIVITIES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/13/2023

Tentative Ruling on Motion for Summary Judgment on the SAC DiLonardo v. Impact Activities, Case No. 2021-22774 Sept. 1, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This case arises out of the City of Coronado's 2020 decision to outsource management of its municipal tennis center on Glorietta Blvd. at the foot of 10th Street (between the golf course and the Coronado Yacht Club). Plaintiff had worked as a tennis teacher at the tennis center for more than a decade, but was not retained when Impact Activities was named the winning bidder by the City in 2021. Plaintiff believes Impact and its principals misrepresented his support for their response to the City's RFP, and misrepresented their intention to retain tennis professionals like him. The five count complaint for fraud, unfair competition, interference and libel was filed in May, 2021.

Defendants' original counsel filed a demurrer, ROA 9, and shortly thereafter calendared a motion to be relieved as counsel for the plaintiff. ROA 10. No motion to withdraw was ever filed, as there was a substitution. ROA 13-16. The hearing on the initial demurrer never went forward either, as plaintiff elected to file the FAC. ROA 17, 30, 38.

The FAC added the City of Coronado as a defendant. The City answered, ROA 50, but the Impact defendants again demurred. ROA 43-48. The court's ruling on the demurrer (ROA 69) gave rise to the SAC (ROA 70). It states claims for fraud, interference, libel and violation of the UCL. Both sets of defendants answered. ROA 89, 91-92. The Impact defendants changed counsel. ROA 72-74. Plaintiff also changed counsel. ROA 109. At the continued CMC, the court set the case for trial in January of 2023. ROA 53-58. However, the parties later agreed to trial continuances, which the court allowed. ROA 95-99. The case is now set for trial later this month.* ROA 113-117.

Presently, the Impact defendants seek summary judgment on the SAC, or alternatively summary adjudication of seven issues. ROA 118-125. Plaintiff filed opposition. ROA 149-153. The Impact defendants filed reply. ROA 155-158. The court has reviewed the papers, and no further submissions are authorized in connection with this motion.

2. Applicable Standards.

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2980201 44 CASE NUMBER: CASE TITLE: DILONARDO VS IMPACT ACTIVITIES LLC [IMAGED] 37-2021-00022774-CU-FR-CTL A. A three-step analysis is employed in ruling on motions for summary judgment. Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373. First, the court identifies the issues framed by the pleadings. Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617. Second, the court determines whether the moving party has established facts justifying judgment in its favor. Id. Third, if the moving party has carried its initial burden, the court decides whether the opposing party has demonstrated the existence of a triable issue of material fact. Id. at 618. To satisfy this burden, the opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849. Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law. Code Civ. Proc. § 437c(c).

B. The court incorporates parts 2C, 2D, 2E, and 2F of the minutes from May 12, 2022 (ROA 69).

3. Evidentiary Objections.

The Impact defendants object to plaintiff's evidence. ROA 157. Although a proposed order was not submitted – as expressly required by as expressly required by CRC 3.1354(c) – the court has ruled separately on the objections. ROA 159.

4. Discussion and Rulings.

The motion for summary judgment or, in the alternative, summary adjudication is denied.

A. As an initial matter, the court notes that the motion is directed to the FAC rather than the SAC. 'An 'amended' complaint supersedes all prior complaints.' Lee v. Bank of America (1994) 27 Cal.App.4th 197, 215. Thus, 'once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint.' State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131. Here, however, it appears that the reference to the FAC may have been a mere oversight. The court will therefore deem the motion as being directed to the SAC and proceed to the merits.

B. The motion for summary adjudication of issue 1 is denied.

Civil Code section 47(b) provides an absolute privilege for statements made in the course of any 'official proceeding authorized by law.' In determining whether the official proceedings privilege applies, 'the critical question is the aim of the communication[.]' Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 368. If the communication is made in anticipation of or is designed to prompt official proceedings, the communication is protected. Id. In this case, the Impact defendants have failed to establish that the official proceedings privilege bars plaintiff's claims as a matter of law. The Impact defendants do not address the Hagberg 'aim of the communication' test. Nor have the Impact defendants cited any authority holding that the submission of bids in response to an RFP is a communication made prior to an 'official proceeding.' Thus, the Impact defendants have failed to meet their initial burden of showing that the official proceedings privilege is a complete defense to counts 3, 4, and 5. Code Civ. Proc. § 437c(p)(2).

C. The motion for summary adjudication of issue 2 is denied. In the SAC, plaintiff alleges that Myers made two misrepresentations to him: (1) if Impact won the bid, all of the tennis pros would keep their jobs; and (2) all of the other tennis pros supported Impact. (SAC at ¶¶ 39-40, 71-73.) While the Impact defendants have submitted evidence negating the first alleged misrepresentation (UMF 10), they have not addressed or submitted evidence regarding the second alleged misrepresentation. 'If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.' Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13. Accordingly, the Impact defendants have failed to meet their initial burden of showing that the misrepresentation element of Calendar No.: Event ID: TENTATIVE RULINGS

2980201 44 CASE NUMBER: CASE TITLE: DILONARDO VS IMPACT ACTIVITIES LLC [IMAGED] 37-2021-00022774-CU-FR-CTL plaintiff's fraud claim cannot be established. Code Civ. Proc. § 437c(p)(2).

D. The motions for summary adjudication of issues 3 and 4 are denied. There is a triable issue of material fact regarding whether plaintiff and the City were in an economic relationship that contained the probability of future economic benefit to plaintiff at the time of Impact's allegedly wrongful conduct. The evidence that creates this triable issue includes: (i) the declarations of Joel Myers, Mario DiLonardo, Jackie Wendt, and Brent Pettersson; (ii) Def.'s Ex. A; and (iii) Def.'s Exs. 4 and 5. Impact's reliance on Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505 is misplaced because, unlike here, the plaintiffs in that case were bidders on a public works contract.

E. The motion for summary adjudication of issue 5 is denied.

'Libel is recognized as either being per se (on its face), or per quod (literally meaning, 'whereby')[.]' Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5. 'A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.' Civ. Code § 45a. The determination as to whether a publication is libelous per se is one of law. Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1132.

Here, plaintiff alleges that Impact falsely told the City that plaintiff supported Impact's bid. (SAC at ¶ 103.) While this statement clearly is not libel per se, such a finding simply means that plaintiff must prove special damages to establish a claim for libel per quod. See Balla v. Hall (2021) 59 Cal.App.5th 652, 676. In other words, the motion for summary adjudication does not completely dispose of the libel cause of action, and thus it may not be granted. Code Civ. Proc. § 437c(f)(1).

F. The motion for summary adjudication of issue 6 is denied. 'In defamation actions generally, factual truth is a defense which is the defendant's burden to prove.' Eisenberg v. Alameda Newspapers, Inc.

(1999) 74 Cal.App.4th 1359, 1382. In this case, there is a triable issue of material fact regarding whether Impact's statement about plaintiff's support for its bid was true. The evidence that creates this triable issue includes: (i) the declarations of Joel Myers and Mario DiLonardo; and (ii) Def.'s Ex. B.

G. The motion for summary adjudication of issue 7 is denied. The UCL claim is derivative of plaintiff's other claims. Because plaintiff's other claims survive summary judgment/ adjudication, so too does the UCL claim.

F. In issuing this ruling, the court has not considered the Impact defendants' reply separate statement.

Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.

__________________________ *The parties stipulated around the '30 days before trial' rule. ROA 126.

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