Judge: Walter P. Schwarm, Case: 30-2020-01162978, Date: 2023-07-18 Tentative Ruling
Defendants’ (Hassan Kahefipour and Zarrinkelk Kashefipour & Co.) Motion for Summary Judgment as to The Second Amended Complaint (Motion), filed on 2-7-23 under ROA No. 310, is DENIED.
The court DECLINES TO RULE on Plaintiffs’ (Meridian PO Finance, LLC and Breakaway Capital Management, LLC) Objections to Evidence, filed on 7-13-23 under ROA No. 380, as immaterial to the court’s ruling as set forth below. (Code Civ. Proc., § 437c, subd. (q).)
The court DECLINES TO RULE on Defendants’ Objections, filed on 7-3-23 under ROA No. 366, as immaterial to the court’s ruling as set forth below. (Code Civ. Proc., § 437c, subd. (q).)
Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in Aguilar; Footnotes 13 and 14 omitted.)
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757, provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”
Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 12-13 (Hufft) states, “The determination whether triable facts exist must be made in light of the issues defined by the pleadings. [Citation.] If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. ‘The moving defendant whose declarations omit facts as to any such theory . . . permits that portion of the complaint to be unchallenged.’ [Citation.] Where, as in this case, no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact. [Citation.]” (See also, Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (Consumer Cause).)
The only cause of action asserted against Defendants in Plaintiffs’ Second Amended Complaint (SAC), filed on 7-14-21 under ROA No. 106, is the seventh cause of action for Aiding and Abetting Fraud. In order to carry Defendants’ initial burden, the Motion relies on Plaintiffs’ factually devoid discovery responses. The Motion states, “Plaintiffs' factually devoid discovery responses, served after extensive discovery, which concede they have no facts (evidence) and are unable to obtain any facts to support the claim for aiding and abetting, are sufficient to shift the burden on this Motion for Summary Judgment to Plaintiffs to present evidence to support the claim. As no such evidence exists, Plaintiffs are unable to meet their burden requiring Summary Judgment be granted for Kashefipour against Plaintiffs.” (Motion; 7:1-5.)
Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (Opposition), filed on 7-3-23 under ROA No. 370, asserts, “The matter at hand could not be any more different. The evidence provided in plaintiffs’ verified discovery responses includes detailed factual allegations, and documentary evidence, substantiating Movants’ involvement in the Vaezi Brothers’ fraud. Plaintiffs refer the Court to the information provided in the table above for the evidence that Movants aver did not exist. As in Crouse, the motion should be denied because it fails to prove that plaintiffs have no evidence to support their case against Movants.” (Opposition; 12:6-11.)
“Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Auguilar, supra, 25 Cal.4th at pp. 854-855; Footnotes 23 and 24 omitted; Italics in Aguilar.)
Bayramoglu v. Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 733 (Bayramoglu), states, “A plaintiff's ‘factually devoid’ discovery responses may be used to shift the burden of production onto the plaintiff when the ‘logical inference’ is that the plaintiff possesses no facts to support his or her claims. [Citation.]” Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107 (Andrews), provides, “Scheiding presumed, as a matter of law, that plaintiffs' responses to comprehensive discovery must fully disclose the evidence known to them at the time of their responses. Parties have a duty to respond to discovery requests ‘as completely and straightforwardly as possible given the information available to them.’ [Citation.] When defendants conduct comprehensive discovery, plaintiffs cannot play ‘hide the ball.’ Moreover, it is not reasonable for courts to infer pursuant to Code of Civil Procedure section 437c, subdivision (c), that defendants can discover further material facts from plaintiffs' lists of people and documents if the plaintiffs do not disclose any facts known by such persons or contained in such documents when asked to do so. In moving for summary judgment, ‘[t]he defendant may . . . present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.’ [Citation.] If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs' factually devoid discovery responses.” (Footnote 3 omitted.)
On 11-21-21, Defendants “. . . served each Plaintiff with separate first sets of Special Interrogatories directed to the allegations of the Second Amended Complaint, which included paragraphs 19, 21, 22, 24, 26, 27, 194, 195, 196, 200 - the Seventh Cause of Action of Aiding and Abetting Fraud.” (Plaintiffs’ Separate Statement (PSS) filed on 7-3-23 under ROA No. 364; PSS No. 5.) PSS No. 15 contains Plaintiffs’ response to Special Interrogatory (SI) No. 4. PSS No. 15, states, “RESPONSE: Mr. Kashefipour provided various services to the Wave Entities from 2003 until 2018. An exhaustive list of all the actions that Mr. Kashefipour took to provide these services-regardless of whether they were related to the Wave Entities' fraudulent scheme-would not promote the efficient adjudication of the matters in this case. It is also unknown to what extent Mr. Kashefipour played a role in every aspect of the fraud perpetrated by the Vaezis and the Wave Entities. It is likely that certain aspects of the fraud were orchestrated by some defendants-such as Matt Vaezi, Mehron Vaezi, Nehal Kothari, or Farzad Hoorizadeh-while others were orchestrated by Mr. Kashefipour and a combination of some or all of the other defendants . . . [¶] The exact nature of the misrepresentations orchestrated or made by Mr. Kashefipour can only be determined by an audit of the Wave Entities' financial records. Such work will be performed by plaintiffs' expert witnesses. As discovery is ongoing in this matter, plaintiffs reserve the right to supplement this response as necessary.” The court notes that Plaintiffs incorporated the response to SI No. 4 in SI Nos. 7, 10, 13, 19, 22, 82, 88, 91, and 94. (PSS Nos. 17, 19, 21, 23, 25, 27, 31, and 33.) Plaintiffs dispute PSS Nos. 15, 17, 19, 21, 23, 25, 27, 31, and 33.
The court notes that PSS No. 15 as presented by Defendants does not provide the complete response to SI No. 4. PSS No. 115 provides the complete response to SI No. 4. (Clarkson Decl., ¶¶ 78, 79, and 80; Plaintiffs’ Compendium of Exhibits (COE) filed on 7-3-23 under ROA No. 374; Exhibits 73 and 74 (See responses to SI Nos. 4, 7, 10, 13, 19, 22, 82, 88, 91, and 94.).)
The Motion does not address the omitted portions of SI Nos. 4, 7, 10, 13, 19, 22, 82, 88, 91, and 94. Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (Quantum) (2011) 197 Cal.App.4th 927, 934, explains “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide. On the record in this case, the trial court was justified in declining to look beyond that failure.”
The unedited discovery responses are not factually devoid. They are detailed and refer to specific events and documents. Although Plaintiffs leave the discovery response open to amendment, state that there are some unknowns, and state that expert testimony will be provided, these references do not establish that the response is factually devoid. Viewing the complete discovery responses, the court finds that the responses are not factually devoid because they do not lead to the logical inference that Plaintiffs possess no facts to support their claims. Plaintiffs’ responses do not merely restate their allegations, or list people and documents.
Thus, the court finds that Defendants have not met their initial burden of showing that Plaintiffs do not have any facts to support their claim by relying on the assertion that Plaintiffs’ discovery responses are factually devoid. Therefore, the court DENIES Defendants’ (Hassan Kahefipour and Zarrinkelk Kashefipour & Co.) Motion for Summary Judgment as to The Second Amended Complaint filed on 2-7-23 under ROA No. 310.
Plaintiffs are to give notice.