Judge: Walter P. Schwarm, Case: 30-2015-00805770, Date: 2022-07-26 Tentative Ruling
Motion No. 1:
Moving Party’s (Carol Gindi) Motion for Order Substituting Allan Gindi, Successor In Interest, for Defendant and Cross-Complainant Carol Gindi Deceased (Motion), filed on 4-13-22 under ROA No. 321, is GRANTED.
Code of Civil Procedure section 377.21 states, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.”
Code of Civil Procedure section 377.31 provides, “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.”
Code of Civil Procedure section 377.32 states, “(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following: [¶] (1) The decedent's name. [¶] (2) The date and place of the decedent's death. [¶] (3) ‘No proceeding is now pending in California for administration of the decedent's estate.’ [¶] (4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest. [¶] (5) Either of the following, as appropriate, with facts in support thereof: [¶] (A) ‘The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.’ [¶] (B) ‘The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.’ [¶] (6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’ [¶] (7) ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’ [¶] (b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact. [¶] (c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.”
Code of Civil Procedure section 377.11 provides, “For the purposes of this chapter, ‘decedent’s successor in interest’ means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.”
Responding Party (American Express National Bank, successor by merger to American Express Bank, FSB) contends, “The Motion continues to be fatally insufficient in that it continues to fail to produce a sufficient factual showing that Allan Gindi is the proper party to pursue Gindi’s alleged $15,000,000 claim made in the Cross-Complaint.” (Responding Party’s Supplemental Response Brief (Response), filed on 7-11-22 under ROA No. 383; 2:7-8.)
Here, the 4-5-22 declaration from Allan Gindi complies with Code of Civil Procedure section 377.32 by providing the required information. Although the Response questions the sufficiency of the declaration, Code of Civil Procedure section 377.32 does not require additional information. Further, Mr. Gindi has provided the Assignment of Assets to Living Trust Chai Trust executed on 9-20-04, the Marital Property Agreement executed 9-20-04, the Certification of Trust, and the Chai Trust document. (6-27-22 Gindi Decl., ¶ 5 and Exhibts 2, 3, 4, and 5.) This evidence shows that Mr. and Ms. Gindi placed all of their rights and interest in property (except life insurance policies and checking accounts) into a living trust. The Marital Property Agreement specifies the division of community property and retirement accounts in the event of a spouse’s death. The Chai Trust provides, at section 9.1, that “If either individual Co-Trustee named in this Trust Agreement shall become unable to serve or otherwise cease to act as Co-Trustee under this Trust Agreement, then the other individual Co-Trustee shall act as sole Trustee under this Trust Agreement.”
This evidence supports Mr. Gindi’s 4-5-22 declaration. Based on the above, the court GRANTS Moving Party’s (Carol Gindi) Motion for Order Substituting Allan Gindi, Successor In Interest, for Defendant and Cross-Complainant Carol Gindi Deceased filed on 4-13-22 under ROA No. 321.
Moving Party is to give notice.
Motion No. 2:
Plaintiff’s (American Express National Bank, successor by merger to American Express Bank, FSB) Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues (Motion), filed on 12-23-21 under ROA No. 289, is DENIED.
On 12-30-20 under ROA No. 205, Plaintiff filed a prior motion for summary judgment/adjudication (Prior MSJ) on its Complaint and the Cross-Complaint. On 9-21-21, the court denied the Prior MSJ. The court’s 9-21-21 Minute Order states in part, “Without the evidence provided by the Fogelman declaration, Plaintiff has not met its initial burden as to each cause of action. Therefore, the court DENIES Plaintiff’s (American Express Bank National Bank, successor by merger to American Express Bank, FSB) Motion for Summary Judgment, or in the Alternative, for Summary Adjudication filed on 12-30-20 under ROA No. 205. [¶] Plaintiff made a request to provide supplemental declaration from Ms. Fogelman to address the objections. The request is DENIED. The Court views the request as providing new evidence that was not submitted with the motion. The Court is not making any final ruling under CCP 437(c)(f)(2) should Plaintiff bring a subsequent Motion for Summary Judgment and/or Adjudication.” (9-21-21 Minute Order; Emphasis in 9-21-21 Minute Order.)
Code of Civil Procedure section 437c, subdivision (f)(2), states, “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”
Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 734, (Schacter), explains, “In Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 86 Cal.Rptr.2d 909 (Bagley), the trial court had earlier denied the defendant's motion for summary judgment, summarily adjudicated 27 of the issues in favor of the defendant, and denied the remaining 103 requests for summary adjudication. Later, relying on the same facts and the same law, the defendant made a second motion for summary judgment or, in the alternative, summary adjudication of each of the plaintiff's seven causes of action. The second motion was heard by a different judge, who granted summary judgment. On appeal, Division One of this District reversed and remanded. The Bagley court held a second summary judgment motion is barred where it offers ‘no “newly discovered facts or circumstances,’ ” does not suggest that ‘ “a change of law” ’ had occurred, and does not request the judge to ‘make a finding’ concerning these statutory requirements. [Citation.]” The court found, “The defendants, as parties to the case, were expressly bound by the requirements of section 437c (f)(2). Their motion, however, violated that provision because it failed to establish newly discovered facts or circumstances or a change of law. They are, therefore, barred from renewing their summary judgment motion. Accordingly, the trial court erred in considering defendants' second motion for summary judgment.” (Id., at p. 739; Footnote 6 omitted.)
The Motion states, “. . . the issue raised by Defendants and the Court as to the Declaration of Stephanie Fogelman not demonstrating her knowledge of the recordkeeping procedures of American Express Bank, FSB, was a newly discovered circumstance not known to American Express and its counsel at the time.” (Motion, 6:7-10.) Plaintiff’s Reply to Opposition to American Express’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues (Reply), filed on 4-14-22 under ROA No. 334, states, “American Express is not bringing its renewed MSJ/MSA pursuant to a motion for reconsideration under CCP Section 1008 but it is bringing it under CCP Section 437c(f)(2) based on newly discovered facts or circumstances (Separate Statement No. 21-24). (Reply; 5:20-23.)
Plaintiff’s Separate Statement (PSS), filed on 12-23-21 under ROA No. 282, states in part, “American Express is bringing this new motion with the additional information substantiating Ms. Fogelman’s qualifications to testify to the business records of American Express Bank, FSB, as well as its recordkeeping procedures. American Express is bringing this motion based on newly discovered circumstances under CCP 473c(f)(2). Specifically, the issue raised by Defendants and the Court as to the Declaration of Stephanie Fogelman not demonstrating her knowledge of the recordkeeping procedures of American Express Bank, FSB, was a newly discovered circumstance not known to American Express and its counsel at the time. It was believed that in American Express submitting a declaration from Stephanie Fogelman communicating that she was the Assistant Custodian of Records of American Express National Bank, ‘successor by merger to American Express Bank, FSB,’ was sufficient to relay that essentially the companies and records are one of the same and that there would be no objection to her qualifications to testify to records of the merged entity for which she previously served as an Assistant Custodian of Records of.” (DSS No. 24.)
Here, Plaintiff has not shown that the Motion is based on “newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion” under section 437c, subdivision (f)(2). The only substantive difference between this Motion and the Prior MSJ appears to be a revised 12-14-21 declaration of Stephanie Fogelman (filed on 12-23-21 under ROA No. 290 as Exhibit 1). This declaration statements paragraphs 2-3 which were not in Ms. Fogelman’s 12-28-20 declaration (filed on 12-30-20 under ROA No. 207 as Exhibit 1). Paragraphs 2 and 3 of Ms. Fogelman’s 12-14-21 declaration state, “From March 1, 2010 through April 1, 2018, the date American Express Bank, FSB merged with American Express National Bank, I held the position of an Assistant Custodian of Records for American Express Bank, FSB. Since April 1, 2018, I have held the same position as an Assistant Custodian of Records for American Express National Bank. [¶] In my current capacity as Assistant Custodian of Records for American Express National Bank and in my prior capacity as Assistant Custodian of Records for American Express Bank, FSB, I am familiar with the ongoing credit card business operations and practices of American Express, particularly with respect to its recordkeeping computer systems . . . .”
The court’s prior finding that the Fogelman declaration lacked foundation was not a newly discovered fact or circumstance as contemplated by Code of Civil Procedure section 437c, subdivision (f)(2), because the additional information regarding Ms. Fogelman’s employment in the second Fogelman declaration was in Plaintiff’s possession at the time Plaintiff made the Prior MSJ. In other words, the evidence described in Ms. Fogelman’s 12-14-21 declaration existed at the time of the Prior MSJ. Plaintiff’s proposed construction of Code of Civil Procedure section 437c, subdivision (f)(2), could allow a party to submit repeated motions for summary judgment whenever the motion is denied based on evidentiary deficiencies which can be remedied by the moving party. Plaintiff does not cite any legal authority for this interpretation of Code of Civil Procedure section 437c, subdivision (f)(2).
Based on the above, the court DENIES Plaintiff’s (American Express National Bank, successor by merger to American Express Bank, FSB) Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues, filed on 12-23-21 under ROA No. 289, pursuant to Code of Civil Procedure section 437c, subdivision (f)(2).
Defendant/Cross-Complainant is to give notice.