Judge Upinder S. Kalra, Case 19STCV27449 2023-04-27 Tentative Ruling

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1. An order granting summary judgement, or alternatively, summary adjudication, as to the 4^th through 11^th causes of action as well as to punitive damages.

On August 5, 2019, Plaintiff Raphael L. Samuel (“Plaintiff”) filed a complaint against Defendants Masterlink U.S. & International, LLC, a.k.a. Masterlink USI, LLC, Trhosia Ingram, Vince Dushwan Williams, and Does 2 through 30 (“Defendants”). The complaint alleged seven causes of action: (1) Damages for Breach of Contract, (2) Damages for Fraudulent Misrepresentation, (3) Damages for Fraudulent Misrepresentation, (4) Damages for Fraudulent Concealment, (5) Cancelation of Quitclaim Deed Based on Fraud, (6) Quiet Title, and (7) Promissory Estoppel. The complaint alleges that the Plaintiff became owner of the Subject Property. The Plaintiff then entered into an oral agreement with Defendant, where the Plaintiff agreed to convey the Property to Defendant Masterlink in exchange for immediate pay-off of a certain promissory note. However, the Defendants have not performed, and the Promissory Note is in default.

On May 12, 2020, Defendants Masterlink U.S. & International, LLC, Trhosia Ingram filed an Answer.

On August 24, 2020, Plaintiff filed an Amendment to Complaint, Fictious/Incorrect Name, adding Nest Seekers CA Corp. as Doe 1.

On September 30, 2020, Plaintiff filed a Motion for Leave to Amend Complaint, which was GRANTED.

On February 3, 2021, Defendants Masterlink U.S. & International, LLC, Trhosia Ingram filed an Answer.

On February 16, 2021, Defendant Vince Dushwan Williams filed a Demurrer with a Motion to Strike, which was SUSTAINED with leave to amend.

On June 14, 2021, Defendant Vince Dushwan Williams filed a Demurrer with a Motion to Strike, which was OVERRULED.

On October 18, 2021, Defendants Masterlink U.S. & International, LLC, Trhosia Ingram filed an Answer.

On March 28, 2022, Plaintiff filed a Motion for Summary Adjudication, which was DENIED.

On November 21, 2022, Defendant Nest Seekers CA Corp. filed a Motion for Summary Judgment, or in the alternative, for Summary Adjudication.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741).

As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element. (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). A motion for summary judgment or summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak. (See Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475; Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.

Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (CCP § 437c(o)(2)). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. (CCP § 437c(o)(1)-(2)).

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

Defendant requests that the Court take judicial notice of the following documents:

1. Two recorded deeds with respect to the single family residence at 4404 Don Zarembo Drive, Los Angeles

2. Plaintiff Samuel’s complete Verified Second Amended Complaint in this Action

3. Declaration of Defendant Vince Williams (having no exhibits) filed in this Action on 6/15/22 in opposition to Plaintiff Samuel’s motion for summary adjudication

Defendant’s Request for Judicial Notice is GRANTED, as to the first two documents.

Defendant’s Request for Judicial Notice is DENIED, as to the third document. However, the Court will consider the declaration as an exhibit.

Plaintiff request that the Court take judicial notice of the following documents:

1. Exhibit A, a 12-page document consisting of five grant deeds on public record in the Office of the County Recorder for Los Angeles County.

2. Exhibit A-1, a true and correct copy of the Declaration of Defendant Vincent Williams in support his opposition to Plaintiff’s motion for summary judgment.

3. Exhibit A-2, a true and correct copy of the Deposition Transcript of Vincent Williams.

4. Exhibit A-4, a true and correct copy of the Notice of Default and Election to Sale and additional documentation evidencing the recent foreclosure sale of the Subject Property.

5. Exhibit B, a true and correct copy of a business record from JP Morgan Chase Bank, acknowledging record of a promissory note executed by Raphael Samuel in April of 2007 in relation to the purchase of the Subject Property in April of 2007.

6. Exhibit C, a true and correct copy of Exhibit C to the Second Amended Complaint.

7. Exhibit D, a true and correct copy of Exhibit D to the Second Amended Complaint.

8. Exhibit E, a listing for the Subject Property under the name and license numbers of Vincent Williams and Nest Seekers.

9. Exhibit F, a true and correct copy of an online public record on the website for the California Department of Real Estate, Vincent Williams under Department of Real Estate License # 01213544.

10. Exhibit F-1, a true and correct copy of an online public record showing Nest Seekers Ca Corp under Department of Real Estate License # 01934785.

11. Exhibit G, a true and correct copy of a printout of the listing evidenced by Exhibit E. Exhibit G was attached as Exhibit G to the deposition transcript of Vincent Williams.

12. Exhibit H, a true and correct copy of Exhibit H attached to the deposition transcripts of Vincent Williams.

13. Exhibit I, a true and correct copy of Exhibit I attached to the deposition transcripts of Vincent Williams.

14. Exhibit J, a true and correct copy of a 24-page document produced by Nest Seekers in response to a document request by Plaintiff. These pages were pre-marked by Nest Seekers as N1-24. Exhibit J was attached as Exhibit J to the deposition transcript of Vincent Williams. Page 177-185.

15. Exhibit K, a true and correct copy of a 24-page document produced by Nest Seekers in response to a document request by Plaintiff. These pages were pre-marked by Nest Seekers as N25-37. Exhibit K was attached as Exhibit K to the deposition transcript of Vincent Williams.

16. Exhibit L, a declaration from Raphael Samuel’s tax advisor from year 2007 to the present year.

Plaintiff’s Request for Judicial Notice is GRANTED, as to 1, 4, 6, 7, 9, 10,

Plaintiff’s Request for Judicial Notice is DENIED, as to Nos. 2, 3, 5, 8, 11, 12, 13, 14, 15, and 16.

However, the Court will consider items 2, 3, 5, 12, 13, 14, 15, 16 as exhibits.

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4^th 1150, 1173.)

“The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945).

“[A] promise is an indispensable element of the doctrine of promissory estoppel. The cases are uniform in holding that this doctrine cannot be invoked and must be held inapplicable in the absence of a showing that a promise had been made upon which the complaining party relied to his prejudice.” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044.) Moreover, “to be enforceable, a promise need only be “ ‘definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (Id. at 1045.)

Defendant that there was no contract between Plaintiff and Defendant Nest Seekers. The “contract” is the “listing agreement.” However, Defendant argues that an agreement was not executed, and Plaintiff has no evidence that an agreement was entered by the parties. Plaintiff stated in his deposition that no “listing agreement” with Nest Seekers was entered. (UMF 7.) Defendant further argues that under Civil Code § 1624(a)(4), a listing agreement must be in writing. As to the breach and causation elements, Defendant argues that because Plaintiff did not enter a listing agreement, there was no breach of any agreement. Further, as for promissory estoppel, Defendant argues that it is a substitution for consideration and a “breach of contract claim precludes a promissory estoppel claim.” (Motion 12: 13-15.)

The Court finds that Defendant met its initial burden of establishing that there was no promise that could be breached, i.e., there was no listing agreement. (UMF 7, Exhibit D Call Dec (Deposition of Plaintiff), p.74:16-18.) Once a Defendant establishes that an element cannot be met, the burden shifts to the Plaintiff to establish that a triable material fact exists. Plaintiff has failed to meet his burden. Plaintiff presented no admissible evidence that there was any promise (i.e. a listing agreement) between Plaintiff and Defendant Williams acting as an agent of Defendant Nest Seekers.[1]

Motion for Summary Adjudication is GRANTED, as to the Fourth Cause of Action.

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215)

Defendant argues that because Plaintiff cannot establish a “listing agreement,” no fiduciary relationship was established and therefore, there can be no breach. (UMF 7, Issue No. 2.)

Plaintiff has presented no evidence to dispute this. Plaintiff additionally argues that Mr. Williams admitted to assisting Mr. Samuel “with a loan modification related to the Promissory Note.” (Opp. 9: 10-11, Ex. A-2, Dec. Clark.)

Plaintiff therefore argues that this evidence indicates that Plaintiff has sufficiently alleged cause of action for breach of fiduciary duty. Therefore, because Mr. Williams was acting under the scope of Nest Seekers and listing a property was within Mr. Williams employment with Nest Seekers, a fiduciary relationship existed.

As stated above, it is Defendant’s initial burden to establish that an element of the cause of action cannot be met. Here, Defendant has initially established that there was no contract, i.e., the listing agreement. Therefore, it is Plaintiff’s burden to establish the existence of a triable material fact. Here, the Court finds that Plaintiff has failed in his burden. Even assuming that Plaintiff has sufficiently raised a triable issue of material fact as to the existence of a fiduciary duty because Defendant Williams convinced Plaintiff to execute the quitclaim deed in December 2017 in order to list the property for three months on the Multiple Listing Service while Defendant Williams was an agent of Defendant Nest Seekers, Plaintiff has presented no evidence that he was damaged by any breach. The entire theory of damage is that Defendant Williams failed to abide by his 2007 promise to make payments on the promissory note or to re-finance and take Plaintiff’s name off of the promissory note. The breach of those two promises are what caused Plaintiff to suffer damages. As shown earlier, Defendant Williams was not an agent of Defendant Nest Seekers at the time of the 2007 promise.

To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498).

“The elements of negligent misrepresentation are “(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50).

Similar to above, the Court finds that Defendant has met it’s initial burden and Plaintiff has failed to meet his burden. The misrepresentations that caused damage occurred well before Defendant Williams was an agent of Defendant Nest Seekers.

Motion for Summary Adjudication is Granted, as to the Sixth Cause of Action.

“Constructive fraud ‘arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.’ [Citation.] Actual reliance and causation of injury must be shown.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131, as modified on denial of reh'g (Feb. 27, 2014))” “Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.” (Id.).

Similar to above, the Court finds that Defendant has met it’s initial burden and Plaintiff has failed to meet his burden. First there was no listing agreement involving Plaintiff so that cannot support an action for Constructive Fraud. Second, even assuming that Defendant Williams fraudulently induced Plaintiff to execute the Quitclaim deeds while an agent of Defendant Nest Seekers, Plaintiff has failed to show injury.

Motion for Summary Adjudication is GRANRED, as to the Seventh Cause of Action.

Under the UFTA, a transfer is fraudulent, both as to present and future creditors, if it is made “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.” (Civ. Code, § 3439.04, subd. (a).) (Mejia v. Reed (2003) 31 Cal.4th 657, 664).

Defendant argues that similar to above, Plaintiff fails to allege a “creditor/debtor” relationship between Plaintiff and Defendant. Plaintiff has not demonstrated that Defendant “was transferred any asset at a time when Defendant Nest Seekers was ‘insolvent (or by such transfer will be made “insolvent”).” (Motion 15: 3-6.)

The Court finds that this cause of action fails. There is no evidence presented to establish that Defendant Nest Seekers was in a creditor/debtor relationship with Plaintiff. The evidence presented does not demonstrate that another individual transferred Defendant any asset. The evidence here indicates that Plaintiff executed two quitclaim deeds to Defendant Williams, not to Defendant Nest Seekers.

Motion for Summary Adjudication is GRANTED, as to the Eighth Cause of Action.

“There are two forms of constructive fraud under the UFTA. Civil Code section 3439.04, subdivision (b) provides that a transfer is fraudulent if the debtor did not receive reasonably equivalent consideration and either “(1) Was engaged or about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or [¶] (2) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.” (Mejia v. Reed (2003) 31 Cal.4th 657, 669–670).

Defendant makes the same argument as in the Eight Cause of Action as it does for this cause of action. Plaintiff makes no argument as to this cause of action.

Similar to the eighth cause of action, the Court finds that this cause of action fails. There is no evidence presented to establish that Defendant Nest Seekers was in a creditor/debtor relationship with Plaintiff. The evidence presented does not demonstrate that another individual transferred Defendant any asset. The evidence here indicates that Plaintiff executed two quitclaim deeds to Defendant Williams, not to Defendant Nest Seekers. Moreover, the promissory note which was signed by Defendant Ingram does not implicate Defendant Nest Seekers. (Exhibit E of the SAC.)

Motion for Summary Adjudication is GRANTED, as to the Ninth Cause of Action.

To state a valid claim for ejectment, a “plaintiff must show himself entitled to the present possession, and that he has been deprived thereof.” (Montgomery v. Santa Ana & W. Ry. Co. (1894) 104 Cal. 186, 197.) “The action of¿ejectment¿is merely a possessory action, and is confined to cases where the claimant has a possessory title--that is to say, a right of entry upon the lands. To support it, four things are necessary, viz., title, lease, entry, and ouster.” (Payne v. Treadwell¿(1855) 5 Cal. 310, 311; Zaccaria v. Bank of America Nat. Trust and Sav. Ass'n¿(1958) 164 Cal.App.2d 715, 719; Grossman v. Yip Wing¿(1923) 62 Cal.App. 121, 130.)

Defendant argues that Plaintiff has not established that Defendant “is holding “possession,” or claims any right to hold “possession,” of the Zarembo House.” (Motion 15: 27-28.) Plaintiff makes no argument as to this cause of action.

The Court finds that this cause of action also fails because there is no evidence to indicate that Defendant has deprived Plaintiff of possession of the land. While there may be a claim as to other defendants in this action, there is no evidence to indicate that Defendant Nest Seekers has any claim of possession or right to the Subject Property.

Motion for Summary Adjudication is GRANTED, as to the Tenth Cause of Action.

For a declaratory judgment, a party must demonstrate that the action is “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [that party’s] rights or obligations.” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1581).

Defendant argues that it never has, nor does it now, claim any right to the Zarembo House or to the quitclaim deeds. Therefore, because Defendant has not claimed any right to the house or the deeds, declaratory relief is not necessary or appropriate. Plaintiff makes no argument as to this cause of action.

The Court finds that this cause of action also fails. As Plaintiff, in the SAC seeks a judicial determination about the subject property, this cause of action for declaratory relief is inapplicable. As above, there is no claim for ejectment or that Defendant had possession of the Subject Property. Therefore, as to Defendant Nest Seekers, the action is not the proper subject of declaratory relief.

Motion for Summary Adjudication is GRANTED, as to the Eleventh Cause of Action.

Motion for Summary Adjudication is GRANTED, as to the request for Punitive Damages.

[1]As best as the Court can tell from reviewing the SAC and Opposition, Plaintiff is not alleging, nor could he, that Defendant Nest Seekers breached the 2007 oral agreement between Plaintiff and Defendant Williams regarding payments on the promissory note. According to Plaintiff, Defendant Williams commenced working for Defendant Nest Seekers on October 14, 2016. (Request for Judicial Notice item 14, Exhibit J-003.) In other words, Plaintiff does not dispute that Defendant Williams did not become an agent of Defendant Nest Seekers until 2016. nine years after the original oral promise to make payments on the promissory note was made.