140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al.

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

Tentative Ruling

NOTICE: Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure: To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED. Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-6a.pdf.

Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf. A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with the clerk.

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: Plaintiff/cross-defendant 140 Blue Ravine, LLC’s (“Plaintiff”) motion for summary judgment/adjudication as against defendants/cross-complainants Phoenix Motor, Inc. (“Phoenix”) and SPI Solar, Inc. (“SPI”) (collectively “Defendants”) is ruled upon as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving plaintiff’s 46

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

Undisputed Material Facts and which of the parties’ written objections to evidence will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Plaintiff’s counsel failed to comply with CRC Rule 3.1110(b)(3)-(4).

Plaintiff’s counsel failed to comply with CRC Rule 3.1350(d)(3), requiring that all citations to supporting evidence include reference to the exhibit, title, page, and line numbers, and not merely to the paragraph in which the supporting evidence is located.

Plaintiff’s counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when the evidence exceeds 25 pages.

Defendants’ opposition papers were not timely filed or served in advance of the original 8/14/2025 hearing date but in the Court’s discretion, they were considered.

Defendants’ counsel failed to comply with CRC Rule 3.1113(f), requiring a table of contents and a table of authorities when the memorandum exceeds 10 pages.

Defendants’ counsel failed to comply with CRC Rule 3.1350(f)(2), expressly requiring an opposing party who contends that a fact is disputed to state “the nature of the dispute and describe the evidence that supports the position that the fact is controverted,” as well as to provide citations to evidence which include reference to the exhibit, title, page, and line numbers, not merely to the paragraph in which the supporting evidence is located.

Defendants’ counsel failed to comply with CRC Rule 3.1354(b), expressly prohibiting objections to evidence from being restated or reargued in the separate statement.

Defendants’ counsel failed to comply with CRC Rule 3.1354(b)(3), expressly requiring the written objections to evidence quote or set forth the objectionable statements claimed to be inadmissible, so the Court need not expend its finite resources searching for the specific statements to which these objections are directed to in order to rule on such objections.

Factual Background

This action arises from a 2022 commercial lease whereby defendant PMI agreed to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

lease certain premises from Plaintiff. This action was commenced on 10/18/2023 with a complaint for breach of contract against defendant Phoenix and its guarantor, defendant SPI. The operative Second Amended Complaint (“2AC”) filed on 12/27/2024 alleges a single cause of action against Phoenix for breach of the lease agreement and a single cause of action against SPI for breach of the lease guaranty. Defendants filed on 3/7/2025 a cross-complaint for conversion, trespass, negligence, negligent interference with prospective economic relations, violation of Civil Code §1993.07, and declaratory relief. This action has not yet been set for trial.

Moving Papers. Plaintiff now moves for summary judgment on not only its own 2AC but also Defendants’ cross-complaint on the grounds there are no triable issues of material fact and Plaintiff is therefore entitled to judgment as a matter of law on both pleadings. (See, Am. Not. of Mot., p.1:26-p.2:1; p.2:13-16.) As support for summary judgment on the 2AC, Plaintiff relies on Undisputed Material Fact (“UMF”) Nos. 1-39 and with regard to summary judgment on the cross-complaint, “Plaintiff incorporates by reference [UMF] Nos. 28 [sic], inclusive” but then sets forth UMF Nos. 40-46. (See, Pl. Am. Sep. Stm., pp.2-9.)

In the alternative to summary judgment on the 2AC, Plaintiff seeks summary adjudication of the following four (4) issues:

Plaintiff’s first cause of action against Phoenix for breach of contract, citing as support UMF Nos. 1-12 and 16-39; Plaintiff’s second cause of action against SPI for breach of contract, offering UMF Nos. 1-39; Phoenix had a duty to perform under the subject lease agreement but breached same by failing to pay rent when due, relying on UMF Nos. 1-8, 16-18, 20-21 and 29-31; and SPI had a duty to perform under the subject guaranty but breached same by failing to perform when Phoenix failed to timely pay rent, advancing UMF Nos. 1-8, 13- 14, 16-18, 20-21 and 29-31. (See, Am. Not. of Mot., p.2:1-12; Pl. Am. Sep. Stm., p.10.)

In the alternative to summary judgment on Defendants’ cross-complaint, Plaintiff seeks summary adjudication of the following five (5) issues:

Defendants’ first cause of action for conversion because Plaintiff cannot be liable for the abandoned property which the latter disposed of pursuant to Civil Code §1993.07, citing as support UMF Nos. 28 and 40-46; Defendants’ second cause of action for trespass to chattels because Plaintiff

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

cannot be liable for the abandoned property which the latter disposed of pursuant to Civil Code §1993.07, again relying on UMF Nos. 28 and 40-46; Defendants’ third cause of action for negligent interference with prospective economic relations because Plaintiff cannot be liable for the abandoned property which the latter disposed of pursuant to Civil Code §1993.07, again offering UMF Nos. 28 and 40-46; Defendants’ fourth cause of action because no cause of action exists for violation of Civil Code §1993.07, which Plaintiff claims is a “pure question of law” and for which no UMF is cited as support; and Defendants’ fifth cause of action for negligence because Plaintiff cannot be liable for the abandoned property which the latter disposed of pursuant to Civil Code §1993.07, again relying on UMF Nos. 28 and 40-46. (See, Am. Not. of Mot., p.2:16-p.3:6; Pl. Am. Sep. Stm., pp.11-12.)

Opposition. Defendants Phoenix and SPI oppose, arguing that Plaintiff has failed to demonstrate the absence of any triable issue of material fact insofar as “Plaintiffs [sic] claims regarding mitigation of damages, calculation of damages, evidence of the auction, and efforts to relet the premises are flawed and unsupported by sufficient evidence. (Opp., p.2:2-4.) In particular, the opposition primarily advances the following five (5) contentions:

(1) “The damages in this matter are uncertain” and “are calculated incorrectly based on the date of the upcoming hearing,” failing “clearly calculate[] what damages are due at the time of the hearing, the offsets of rent, offsets from proceeds of the auction, and attorney’s fees;” (2) “Plaintiffs [sic] claim for future rent is based on speculative assumptions about the property’s rental value and discount rates,” as well as the inability “to relet the premises despite its obligation to continue mitigation efforts,” “creat[ing] a triable issue of fact;” (3) “[t]he ‘Auction’ was not carried out per the strict terms and in compliance with California Code of Civil Procedure [§]1993.07” and “Plaintiff has provided no evidence other than hearsay testimony to allege they [sic] have complied, [with] no invoices, receipts, payments, or proof of any proceeds of the auction;” (4) “Mitigation efforts have been lackluster at best[;] the property is no longer listed for lease on most public forums[; and] the Plaintiff never procured, hired, or used a broker or agent to attempt to relet the property, and with over thirty-five inquiries [and] has not disclosed how many prospective tenants applied, the rates for leasing,” etc.; and (5) “Plaintiff’s claims they [sic] are entitled to any adjudication on Defendants’ cross-complaint are cursory, without support, and without any evidence other than

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

hearsay testimony.” (Opp., p.2:4-p.3:6.)

According to the separate statement in opposition, all but five (5) of Plaintiff’s proffered 46 UMFs are characterized as “disputed” (see, Defs.’ Resp. to UMF Nos. 16, 20, 22, 23, 32) but in only nine (9) instances did Defendants actually cite any evidence claimed to show the existence of a material dispute (see, Defs.’ Resp. to UMF Nos. 21, 29-31, 38- 40, 43, 46). In other words, the opposition offered no evidence whatsoever in response to 32 of the 41 individual UMFs which Defendants allege to be “disputed” even though Code of Civil Procedure §437c(p)(1) and (2) both expressly provide that a party opposing summary judgment/adjudication “shall set forth the specific facts showing that a triable issue of material fact exists ” The Court adds that the separate statement in opposition offers no Additional Material Facts which are claimed to preclude summary judgment/adjudication here.

Reply. In its reply, Plaintiff maintains that the opposition, aside from being untimely, “fails on both procedural and substantive grounds” since “Defendants ignore the rules governing separate statements, fail to present admissible evidence on any material issue, and rely on vague, unsupported assertions that cannot defeat summary judgment.” (Reply, p.1:21-27.) Therefore, because Plaintiff has met its burden on each element of its own affirmative claims and its defenses to the cross-complaint, there are no triable issue of material fact and Plaintiff is entitled to summary judgment on the 2AC and the cross-complaint.

Standards for Summary Judgment/Adjudication

In ruling on a motion for summary judgment/adjudication, the Court engages in a threestep process. First, the issues framed by the pleadings must be identified since the pleadings themselves define the scope of what may be addressed via a motion for summary judgment/adjudication (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382) and the evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment/adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to such a motion may not create triable issues beyond the scope of the pleadings, nor are they a substitute for filing amended pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its initial burden of production. Code of Civil Procedure §437c(p)(1) explains that a plaintiff moving for summary judgment/adjudication meets its “burden of showing that there is no defense

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action,” while §437c(p)(2) states that a defendant or cross-defendant meets its “burden of showing that a cause of action has no merit if the 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 the cause of action.” Both of these statutory provisions further specify that only when the moving party has met the applicable initial burden does the burden shift to the opposing defendant and/or opposing plaintiff or cross-complainant to “set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” In other words, a party opposing summary judgment/adjudication has no evidentiary burden unless the moving party has first met its initial burden of production. (Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1151-1152; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.)

Only where the moving party makes the requisite initial showing does a court need to examine the opposition papers to determine if the latter demonstrate the existence of a triable issue of material fact which precludes summary judgment/adjudication. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. (Id.)

As noted above, Code of Civil Procedure §437c(p)(1) and (2) clarify that the opposing party must “set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” Additionally, in ruling on the motion, a court must construe the evidence of the opposing party liberally and that of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874; Cortez v. Vogt (1997) 52 Cal.App.4th 917, 925-926; see also, Salazar v.

Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766, 773.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is found in CRC Rule 3.1350(b), which mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure §437c(f)(1) provides in its entirety:

A party may 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

[punitive] damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for [punitive] damages, or an issue of duty. (Underline added for emphasis.)

Finally, before turning to the specific issues raised by this motion and the opposition, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).)

That said, the Court now turns to the specific contentions advanced in support of and opposition to this motion for summary judgment/adjudication as to both the 2AC and the cross-complaint.

Request for Judicial Notice

Plaintiff’s request for judicial notice of the default and the default judgment entered against defendant Phoenix in Plaintiff’s unlawful detainer action, as well as both the Writ of Possession and the Return on Writ of Possession in the unlawful detainer action, is granted but only for the limited purposes appropriate for judicial notice. (See, Evid. Code §451(a); §452(b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of any statements contained therein].)

Objections to Evidence

Defendants’ Objections. Defendants filed on 7/28/2025 a separate document with written objections to Plaintiff’s evidence in support of the moving papers, objecting to 26 individual items of evidence on multiple grounds. Pursuant to Code of Civil Procedure §437c(q), the Court need not rule on several of these written objections since they

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

concern evidence deemed immaterial to the disposition of this motion but the remainder of these written objections are ruled upon as follows:

Obj. Nos. 1-3: Sustained because the original Strombom Declaration filed on 2/20/2025 fails to set forth a sufficient factual foundation to affirmatively establish the personal knowledge necessary to properly authenticate the Lease Agreement with Phoenix, the Lease Addendum and/or the Lease Guaranty by SPI which were proffered as Plaintiff’s Exhibit Nos. 1-3. (See, Strombom Decl., ¶¶5-6, 20-23.) It appears that the only attestation provided in the original Strombom Declaration to establish foundation is the following statement: “I am a member and owner, of Plaintiff, 140 Blue Ravine, LLC (“Plaintiff”).” (Strombom Decl., ¶2.)

However, the mere fact that an individual is “a member and owner” of an LLC does not establish personal knowledge regarding any specific activities of the LLC or specific documents or agreements that the LLC has executed or entered. There are no attestations as to how Strombom has personal knowledge of the documents or the LLC’s activities, or any facts that might be reasonably relied upon to make such an inference, such as if he was the managing member of the LLC and had been the signatory to the documents on behalf of the LLC, which he was not for the Lease Agreement or Lease Addendum. (See Plaintiff’s Comp. of Exhibits, Exs. 1, 2.)

Nor does the original Strombom Declaration establish that he is the custodian of records or other qualified witness and thereby also set forth an adequate foundation under Evidence Code §1271 to except such records from exclusion as hearsay. In the face of defendants’ objections based upon hearsay, lack of personal knowledge and lack of foundation, this evidence must be excluded on such grounds. The Court sustains the objections, adding that this explanation is equally applicable to additional sustained objections indicated below and will not be repeated in full.

Obj. Nos. 4-5: Sustained because the original Strombom Declaration filed on 2/20/2025 fails to set forth a sufficient factual foundation to affirmatively establish the personal knowledge necessary to properly authenticate (and also avoid exclusion as hearsay) the two separate Three-Day Notices to Pay Rent or Quit, which were proffered as Plaintiff’s Exhibit Nos. 4-5. (See, Strombom Decl., ¶¶30-37.)

Obj. Nos. 6-7: Sustained because the original Strombom Declaration filed on 2/20/2025 fails to set forth a sufficient factual foundation to affirmatively establish the personal knowledge necessary to properly authenticate (and also avoid exclusion as hearsay) the Request for Entry of Default and the Default Judgment entered against defendant Phoenix in Plaintiff’s unlawful detainer action, which were proffered as Plaintiff’s Exhibit Nos. 6-7. (See, Strombom Decl., ¶¶40-44.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

Obj. Nos. 8-9: Sustained because the original Strombom Declaration filed on 2/20/2025 fails to set forth a sufficient factual foundation to affirmatively establish the personal knowledge necessary to properly authenticate (and also avoid exclusion as hearsay) the Writ of Possession and the Return on Writ of Possession in Plaintiff’s unlawful detainer action, which were proffered as Plaintiff’s Exhibit Nos. 8-9. (See, Strombom Decl., ¶¶45-49.)

Obj. No. 10: Sustained because the original Strombom Declaration filed on 2/20/2025 fails to set forth a sufficient factual foundation to affirmatively establish the personal knowledge necessary to properly authenticate (and also avoid exclusion as hearsay) the spreadsheet which was proffered as Plaintiff’s Exhibit No. 10 and/or to affirmatively establish that all of the prerequisites specified in Evidence Code 1271 for the “business records” exception to the hearsay rule have been met. (See, Strombom Decl., ¶¶120-128.) Again, there is no evidence showing that Strombom personally prepared the spreadsheet or its calculations or that it is an admissible “business record.”

Obj. No. 13: This objection fails to comply with CRC Rule 3.1354(b)(3), expressly requiring written objections to evidence to quote or set forth the objectionable statements claimed to be inadmissible so the Court need not expend its finite resources to search out the specific statements in order to rule on their admissibility but this objection is nevertheless sustained as to the statements contained in Paragraphs 5- 111, 114 and 121-128 of the original Strombom Declaration filed on 2/20/2025 because the declarant fails to set forth a sufficient factual foundation to affirmatively establish the personal knowledge necessary to competently offer such statements and because the statements in these paragraphs are also hearsay, impermissibly conclusory, lack adequate foundation and constitute improper legal opinion and/or argument.

Obj. No. 14: This objection too fails to comply with CRC Rule 3.1354(b)(3), expressly requiring written objections to evidence to quote or set forth the objectionable statements claimed to be inadmissible, but it is nevertheless sustained as to the statements contained in Paragraphs 3-9 of the supplemental Strombom Declaration filed on 5/22/2025 because the declarant fails to set forth a sufficient factual foundation to affirmatively establish the personal knowledge necessary to competently offer such statements and because the statements in these paragraphs are also hearsay, impermissibly conclusory, lack adequate foundation and constitute improper legal opinion and/or argument.

The Court adds that these paragraphs purport to state that a “substantial amount of tangible personal property remained on the Premises” after the possession was returned to plaintiff, but states nothing to indicate how Strombom knows this to be true, such as whether he visited the property before and after it was leased to defendant. He likewise cannot competently testify to the list of property that

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

was, in fact, abandoned by defendant.

Obj. Nos. 18-26: These objections also fail to comply with CRC Rule 3.1354(b)(3), expressly requiring written objections to evidence to quote or set forth the objectionable statements claimed to be inadmissible, and appear to be directed at evidence encompassed by the Court’s sustaining of Objection No. 13 as to multiple paragraphs of the original Strombom Declaration filed on 2/20/2025. Nevertheless, the Court sustains Objection Nos. 18-26 because Figures 1-9 in the original Strombom Declaration filed on 2/20/2025 lack adequate foundation, are impermissibly conclusory and constitute improper legal opinion and/or argument.

To the extent Defendants’ separate statement in opposition appears to restate and/or reargue the any or all of the aforementioned objections to evidence which are set forth in the separate document filed on 7/28/2025, this is in violation of CRC Rule 3.1354(b) which expressly prohibits objections to evidence from being restated or reargued in the separate statement.

To the extent Defendants’ separate statement in opposition purports to assert additional objections (above and beyond the written objections to 26 specific items of evidence which are set forth in the separate document filed on 7/28/2025 and which are addressed above) to the evidence cited as support for all of the 41 UMFs that the opposition contends are “disputed” (see, Defs.’ Resp. to UMF Nos. 1-15, 17-19, 21, 24- 31, 33-46), such objections shall be overruled because they are not set forth in a separate document as required by CRC Rule 3.1354(b); do not include the page and line numbers for the objectionable material as required by Rule 3.1354(b)(2); and do not quote or set forth the objectionable material claimed to be inadmissible as required by Rule 3.1354(b)(3). This Court need not and does not expend its finite resources to search out the evidence to which these objections are directed to in order to rule on the admissibility of such evidence, when CRC Rule 3.1354 sets forth explicit requirements for objections to evidence and Defendants failed to comply with same.

To the extent the objections asserted in Defendants’ opposing separate statement were intended to be objections to the individual UMFs themselves, these objections are overruled because objections are properly directed at evidence only. (See, e.g., CRC Rules 3.1352, 3.1354.)

Plaintiff’s Objections. Plaintiff filed on 8/1/2025 written objections to the evidence which Defendants submitted in opposition, consisting of objections to 14 individual items of evidence. Pursuant to Code of Civil Procedure §437c(q), the Court does not rule on these written objections since they relate to evidence which is not material to the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

disposition of this motion.

Discussion

Plaintiff Failed Initial Burden of Production re: Complaint. Summary judgment in favor of Plaintiff on its own 2AC against Defendants Phoenix and SPI must be denied because the moving papers here are not sufficient to satisfy Plaintiff’s initial burden of production under Code of Civil Procedure §437c(p)(1) and the Court need not determine whether Defendants presented evidence which creates a triable issue of material fact.

As noted above, Plaintiff first seeks summary judgment on its 2AC against Defendants on the grounds there is no triable issue of material fact with respect to the breach of contract claims based on the lease agreement with defendant Phoenix and the related guaranty executed by defendant SPI, respectively, relying on UMF Nos. 1-39. However, because the Court has sustained Defendants’ written objections directed at the lease agreement with Phoenix and the subsequent addendum (see, Defs.’ Obj. Nos. 1-2 to Pl.’s Ex.

Nos. 1-2); the related lease guaranty by defendant SPI (see, Defs.’ Obj. No. 3 to Pl.’s Ex. No. 3); and the bulk of the original Strombom Declaration filed on 2/20/2025 (see, Defs.’ Obj. Nos. 13, 18-26), the Court holds that Plaintiff has failed to satisfy its initial burden of producing evidence sufficient to support UMF Nos. 2-18, 20- 23 and 29-38, all of which rest on the original Strombom Declaration either alone or in conjunction with the lease agreement or the guaranty from SPI. In short, because Defendants’ objections have been sustained to this evidence, UMF Nos. 2-18, 20-23 and 29-38 are left with no competent evidentiary support.

Additionally, since Defendants Objection Nos. 4-10 (directed at Pl.’s Ex. Nos. 4-10) have also been sustained, the Court finds no admissible evidence to substantiate Plaintiff’s UMF Nos. 19, 24-28 and 39 either.

Since there is no proper evidentiary support for UMF Nos. 2-39 and since these UMFs are expressly cited in the moving papers as the basis for summary judgment on the 2AC, the Court holds that Plaintiff has failed to carry its initial burden of production under Code of Civil Procedure §437c(p)(1). Therefore, summary judgment for Plaintiff on the 2AC must be denied regardless of whether the opposition offered evidence sufficient to create any triable issue of material fact.

For the same reasons, Plaintiff’s alternative motion for summary adjudication of the four specific issues pertaining to the 2AC (i.e., breach of lease against defendant Phoenix; breach of guaranty against defendant SPI; Phoenix had duty to perform under the lease

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

but breached its duty by failing to pay rent when due; SPI had duty to perform under the subject guaranty but breached its duty by failing to perform when Phoenix failed to timely pay rent (see, Am. Not. of Mot., p.2:1-12)) must also be denied because the Court has sustained Defendants’ objections not only to the lease agreement/addendum and the guaranty but also to all of the other evidence on which the various UMFs cited in support of summary adjudication on each of the four specific issues are premised, with UMF No. 1 being the sole exception. (See, Pl. Am. Sep. Stm., p.10. [incorporating by reference some or all of UMF Nos. 1-39 (i.e., Issue One: UMF Nos. 1-12, 16-39; Issue Two: UMF Nos. 1-39; Issue Three: UMF Nos. 1-8, 16-18, 20-21, 29-31; Issue Four: UMF Nos. 1-8, 13-14, 16-18, 20-21, 29-31).

Plaintiff Failed Initial Burden of Production re: Cross-Complaint. Summary judgment in favor of Plaintiff on Defendants’ pending cross-complaint shall likewise be denied because the Court finds the moving papers are not sufficient to satisfy Plaintiff’s initial burden of production under Code of Civil Procedure §437c(p)(2), which in turn obviates the need to determine whether Defendants presented evidence which creates a triable issue of material fact relative to the cross-complaint.

According to the amended moving separate statement, Plaintiff seeks summary judgment on the cross-complaint based on “[UMF] Nos. 28 [sic], inclusive” and UMF Nos. 40-46. (See, Pl. Am. Sep. Stm., p.8:15-p.9:26.) UMF No. 28 is expressly premised on Paragraph 49 of the original Strombom Declaration filed on 2/20/2025 as well as Exhibit 9, described as the Return on Writ of Possession in Plaintiff’s unlawful detainer action but Defendants’ objections to both Paragraph 49 of the original Strombom Declaration and Exhibit 9 have been sustained (see, Defs.’ Obj.

Nos. 9, 13), leaving UMF No. 28 with no competent evidentiary support. While it is true that Plaintiff’s Request for Judicial Notice of the Return on Writ of Possession marked as Exhibit 9 has been granted, such judicial notice is limited to the purposes appropriate for judicial notice but this does not extend to the truth of any statements contained in the Return on Writ of Possession. Because Plaintiff failed to satisfy its initial burden under Code of Civil Procedure §437c(p)(2) with respect to UMF No. 28, summary judgment on the cross-complaint must be denied regardless of whether the opposition proffered evidence sufficient to create any triable issue of material fact.

In light of the preceding paragraph, the Court need not proceed further but it does solely to address an additional reason why the moving papers fail to carry Plaintiff’s initial burden of production under Code of Civil Procedure §437c(p)(2) in connection with summary judgment on Defendants’ cross-complaint. Among the UMFs cited as support for summary judgment is UMF No. 43 and it rests solely on Paragraph 9 of the original Strombom Declaration filed on 2/20/2025 and the lease agreement attached as Exhibit

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

1. However, Defendants’ objections to Paragraph 9 of the original Strombom Declaration and Exhibit 1 have been sustained (see, Defs.’ Obj. Nos. 1-2, 13) and thus, UMF No. 43 has no evidentiary support. Since Plaintiff has also failed to meet its initial burden in connection with UMF No. 43 as well, the Court finds a separate and distinct reason why summary judgment on the cross-complaint must be denied irrespective of whether Defendants have produced evidence showing any triable issue.

For the same reasons, Plaintiff’s motion for summary adjudication shall also be denied as to the cross-complaint’s first, second, third and fifth causes of action for conversion, trespass to chattels, negligent interference with prospective economic relations and negligence, respectively. (See, Am. Not. of Mot., p.2:16-p.3:6.) According to the amended moving separate statement, Plaintiff seeks summary adjudication on each of these four individual causes of action based on the exact same seven (7) UMFs which were offered as support for summary judgment on the entirety of the cross-complaint, to wit: “[UMF] Nos. 28 and 40-46, inclusive.” (See, Pl.

Am. Sep. Stm., p.11:1-p.12:9.) However, as discussed in the two preceding paragraphs, Defendants’ objections to the entirety of the evidence Plaintiff cited as support for UMF Nos. 28 and 43 have been sustained. Since neither of these two UMFs is supported by any admissible evidence, Plaintiff has necessarily failed to carry its initial burden of production with respect to UMF Nos. 28 and 43 and this alone mandates denial of summary adjudication of the cross-complaint’s first, second, third and fifth causes of action for conversion, trespass to chattels, negligent interference with prospective economic relations and negligence.

As noted above, Plaintiff also seeks summary adjudication of the cross-complaint’s fourth cause of action for violation of Civil Code §1993.07 (see, Am. Not. of Mot., p.3:2- 3) and according to the amended moving separate statement, Plaintiff contends “no cause of action exists for violation of Section 1993.07,” claiming “[t]his is a pure question of law” (see, Pl. Am. Sep. Stm., p.12:1-3). Summary adjudication of the fourth cause of action for violation of §1993.07 will be denied on the grounds that the moving papers fail to satisfy Plaintiff’s initial burden of production under Code of Civil Procedure §437c(p)(2) with respect to its contention that §1993.07 does not create a statutory right of action.

Although the amended moving points & authorities suggest at Page 15:9-14 that there is no statutory right of action under §1993.07, no actual legal authority is offered to support such a proposition and Plaintiff’s failure to provide legal support for its contention is construed as a waiver of this argument. (See, e.g., Utility Consumers’ Action Network v. Public Utilities Comm. (2010) 187 Cal.App.4th 688, 697 [argument deemed waived where party fails to provide legal argument or authority on point]; Trinity Risk Management, LLC v.

Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008 [“failure to offer reasoned analysis of the issue constitutes a waiver”]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [when

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010098: 140 BLUE RAVINE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs PHOENIX MOTOR, INC, A DELAWARE CORPORATION, et al. 09/25/2025 Hearing on Motion for Summary Judgment in the Alternative MSA in Department 53

party fails to support assertion with reasoned argument and citations to authority, point is treated as waived].) Moreover, to the extent the moving papers might be arguing Plaintiff is entitled to summary adjudication of the fourth cause of action for violation of §1993.07 based on the assertion that Plaintiff did not violate the provisions of §1993.07 (see, Am. MPA, p.15:9-14), Plaintiff has likewise failed to meet its initial burden of production insofar as the amended moving separate statement does not advance any UMFs or evidence in support of the claim that Plaintiff did not violate §1993.07 (see, Pl. Am. Sep. Stm., p.12:1-3). Consequently, summary adjudication must be denied as to the cross-complaint’s fourth cause of action for violation of Civil Code §1993.07 regardless of whether the opposition has shown the existence of any triable issue of material fact.

Finally, the Court notes that the amended moving points & authorities suggest at Pages 15:9-16:2 that the cross-complaint’s declaratory relief cause of action is subject to summary adjudication inasmuch as it is premised upon only “past wrongs” rather than ongoing conduct. However, summary adjudication must be denied as to Defendants’ declaratory relief cause of action against Plaintiff because this cause of action was not specifically identified in either the original or amended Notices of Motion filed on 2/20/2025 and 5/22/2025, respectively, nor does either the original or amended moving separate statements include any specific issue pertaining to the declaratory relief cause of action.

In short, because Plaintiff failed to comply with the express requirements of CRC Rule 3.1350(b) and (h), requiring that each issue presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement, the Court holds that Plaintiff is not here entitled to summary adjudication of the cross-complaint’s cause of action for declaratory relief.

Disposition

For the reasons explained above, Plaintiff’s motion for summary judgment on its own 2AC and also on Defendants’ cross-complaint or alternatively, for summary adjudication of the individual causes of action alleged in the 2AC and the cross-complaint, is DENIED in its entirety because the moving papers were not sufficient to satisfy Plaintiff’s initial burden of production under Code of Civil Procedure §437c(p)(1) and §437c(p)(2).

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)