GAIL PECK, et al. vs HARBOR REAL ESTATE GROUP, LLC, et al.

Issue 14:

Undisputed and established: 1, 2, 8, 9, 10; and Disputed and not established: 3, 4, 5, 6, 7, and 11.

Issue 15:

Undisputed and established: 1, 2; and Disputed and not established: 3.

Issue 16:

Undisputed and established: 1, 2, 8, 9, 10; and Disputed and not established: 3, 4, 5, 6, 7, and 11.

2023CUPP013250: GAIL PECK, et al. vs HARBOR REAL ESTATE GROUP, LLC, et al.

Issue 17:

Undisputed and established: 1, 2, 3, 9, 10, and 11; and Disputed and not established: 4, 5, 6, 7, 8, and 12.

Issue 18:

Undisputed and established: 1, 2, 3, 9, 10, and 11; and Disputed and not established: 4, 5, 6, 7, 8, and 12.

Issue 19:

Undisputed and established: 1, 2, 3, 9, 10, and 11; and Disputed and not established: 4, 5, 6, 7, 8, and 12.

Issue 20:

Undisputed and established: 1, 2, 3, 9, 10, and 11; and Disputed and not established: 4, 5, 6, 7, 8, and 12.

The court declines to rule on the evidentiary objections. (See Code Civ. Proc., § 437c, subd. (q).)

As to Plaintiffs’ additional undisputed material facts, the Court notes the following only:

Disputed and established: 47 and 48.

Summary judgment procedure is well-settled: “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civ. Proc., § 437c, subd. (a).) A party may also move for “summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty. . . .” (Code of Civ. Proc., § 437c, subd. (f)(1).) “The court must grant the motion if all the papers submitted show that there is no triable issue as to any material fact [citation omitted]-that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law [citations omitted]-and that the moving party is entitled to a judgment as a matter of law [citation omitted].” (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855-56, 107, Cal.Rptr.2d 841, 24 P.3d 493, internal quotation marks omitted (“Aguilar”).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Id., 25 Cal.4th at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The Court must construe the evidentiary showing, and all reasonable inferences therefrom, in the light most favorable to the opposing party. (Id., 25 Cal.4th at p. 857, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

The Court follows a three-part test in ruling on the motion:

2023CUPP013250: GAIL PECK, et al. vs HARBOR REAL ESTATE GROUP, LLC, et al.

(1) “First, . . . the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Id., 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

(2) “Second, . . . 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.” (Ibid.)

(3) “Third, . . . how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial.” (Id., 25 Cal.4th at p. 851, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

The Court notes that Plaintiffs have agreed to dismiss Defendant Harbor Real Estate Group, LLC. Thus, this motion will be treated as a motion for summary judgment/summary adjudication by Defendant TBYCI, LLC only.

Defendant TBYCI, LLC’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication Motion for Summary Judgment is DENIED. (Code Civ. Proc., § 437c.) The Court finds that there are disputed material facts (as stated infra) on the issues of duty, breach and causation. Accordingly, the motion is denied.

Counsel for Defendants to give notice of this Court’s ruling.

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