Motion for Summary Judgment
July 31, 2026 Dept. 9 Civil Tentative Rulings
13. 23CV0339 RANDY MICKELSON VS. MELODY SUMMARY JUDGMENT
Defendants/Cross-Defendants/Cross-Complainants, Side, Inc. dba Navigate Realty and Nathaniel Davis (“Side Defendants”), move for summary judgment pursuant to Code of Civil Procedure § 437(c). The motion is made on the grounds there are no triable issues of material fact precluding summary judgment in Side Defendants’ favor on the Plaintiff’s cause of action for Fraud in Purchase of Real Property, which is the only cause of action alleged against Side Defendants in Plaintiff’s Second Amended Complaint.
Legal Principles:
[S]ummary judgment or summary adjudication is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.” (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894–895, 83 Cal.Rptr.3d 146.) 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.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861–862, 107 Cal.Rptr.2d 841, 24 P.3d 493.
In Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1084, 94 Cal.Rptr.2d 575, a trial court granted summary judgment to defendant because plaintiffs failed to file any opposition, pursuant to a local court rule providing that the failure to oppose a motion may be deemed an admission that the motion is meritorious. On appeal, the local rule was held invalid because it conflicted with Code of Civil Procedure section 437c by authorizing the trial court “to grant summary judgment based solely on the absence of opposition, without a preliminary finding that the moving party has met its initial burden of proof.” (Thatcher v.
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Lucky Stores, Inc., supra, at pp. 1086–1087, 94 Cal.Rptr.2d 575.) The Thatcher court emphasized that the statute requires that the moving party assume the initial burden of producing evidence that no triable issue of material fact exists. (Id. at p. 1085, 94 Cal.Rptr.2d 575.) Boyle v. CertainTeed Corp., 137 Cal. App. 4th 645, 654, 40 Cal. Rptr. 3d 501, 508 (2006).
Under summary judgment law, any party to an action, whether plaintiff or defendant, “may move” the court “for summary judgment” in his favor on a cause of action (i.e., claim) or defense (Code Civ. Proc., § 437c, subd. (a))—a plaintiff “contend[ing] ... that there is no defense to the action,” a defendant “contend[ing] that the action has no merit” (ibid.). The court must “grant[]” the “motion” “if all the papers submitted show” that “there is no triable issue as to any material fact” (id., § 437c, subd. (c))—that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law (see Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653 [92 Cal.Rptr.2d 29]; Kelly v. First 22
July 31, 2026 Dept. 9 Civil Tentative Rulings
Astri Corp. (1999) 72 Cal.App.4th 462, 470 [84 Cal.Rptr.2d 810])—and that the “moving party is entitled to a judgment as a matter of law” (Code Civ. Proc., § 437c, subd. (c)). The moving party 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.” (Id., § 437c, subd. (b).)
Likewise, any adverse party may oppose the motion, and, “where appropriate,” must present evidence including “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” must or may “be taken.” (Ibid.) An adverse party who chooses to oppose the motion must be allowed a reasonable opportunity to do so. (Id., § 437c, subd. (h).) In ruling on the motion, the court must “consider all of the evidence” and “all” of the “inferences” reasonably drawn therefrom (id., § 437c, subd. (c)), and must view such evidence (e.g., Molko v.
Holy Spirit Assn., supra, 46 Cal.3d at p. 1107; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]) and such inferences (see, e.g., Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1520 [80 Cal.Rptr.2d 94] [review on appeal]; Ales-Peratis Foods Internat., Inc. v. American Can Co. (1985) 164 Cal.App.3d 277, 280, fn. * [209 Cal.Rptr. 917] [same]), in the light most favorable to the opposing party. Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 843, 24 P.3d 493 (2001), as modified (July 11, 2001).
Discussion:
Plaintiff’s First Cause of Action in their Second Amended Complaint is for Fraud in Purchase of Real Property. Plaintiff alleges Side Defendants knew of facts materially affecting the value or desirability of the property, specifically: 1) the garage was unpermitted; 2) the permit for the property’s septic repair had expired without final approval; and 3) a permit was needed to convert storage to living room. A prior permit (#15188) converted the original garage to storage. Plaintiff alleges that Defendants had an affirmative duty to disclose these material latent facts to Plaintiff but failed to do so.
A real estate buyer suing for fraud must prove each of the following elements: (1) a false representation or concealment of a material fact; (2) made with knowledge of its falsity; (3) with the intent to induce the person to whom it is made to act upon it; and such person must (4) act in reliance upon the representation (5) to his damage. Roche v. Hyde (2020) 51 Cal.App.5th 757,820, as modified on denial of reh'g (July 29, 2020), citing Reed v. King (1983) 145 Cal.App.3d 261,264, italics omitted.
The elements of a cause of action for damages for fraud based on mere nondisclosure and involving no fiduciary relationship are: (1) Nondisclosure by the defendant of facts
July 31, 2026 Dept. 9 Civil Tentative Rulings
materially affecting the value or desirability of the property; (2) Defendant's knowledge of such facts and of their being unknown to or beyond the reach of the plaintiff; (3) Defendant's intention to induce action by the plaintiff; (4) Inducement of the plaintiff to act by reason of the nondisclosure; and (5) Resulting damages. Lingsch v. Savage (1963) 213 Cal.App.2d 729, 738. Side Defendants assert that Plaintiff cannot prove: 1) Side Defendants knowingly concealed or suppressed a material fact; and 2) Side Defendants concealed or suppressed a fact with the intent to defraud Plaintiff.
The undisputed facts and evidence support a finding that Side Defendants did not knowingly conceal or suppress a material fact and therefore did not conceal or suppress a fact with the intent to defraud Plaintiff.
Deposition testimony supports that Defendant Davis did not affirmatively believe the garage was unpermitted. Aside from the 2014 TDS Addendum, Plaintiff testified he did not know what Defendant Davis knew or didn’t know. Defendant Byers testified that Defendant Davis first learned the rebuilding over the garage required a permit in or around 2020, after the sale to Plaintiff. Plaintiff does not dispute the fact that the 2014 TDS Addendum is the only document Plaintiff has to support his allegation that Side Defendants knew the garage on the property was unpermitted before Plaintiff purchased the property.
Plaintiff does not dispute that the 2014 TDS Addendum states, in part, “Per Buyers request to itemize work done without permit I have the following list. This list only represents work known to have been done and not work that is required to be permitted.” (emphasis added). The list includes, “Garage was rebuilt over existing foundation,” along with other items.
Plaintiff does not dispute that before the close of escrow on Plaintiff’s purchase of the property Defendant Davis was not aware that a permit for a septic repair for the property had expired without final approval. Plaintiff does not dispute that before the close of escrow on Plaintiff’s purchase of the property, Defendant Davis was unaware that the property’s lower level was converted from storage space to living space without the necessary permit(s). Plaintiff does not dispute that before the close of escrow on Plaintiff’s purchase of the property, Defendant Davis was unaware that a permit was necessary for the prior owner’s rebuilding of the garage over the existing foundation on the property.
As Plaintiff has not presented any evidence that a triable issue of material fact exists, the Court grants Side Defendants’ Motion for Summary Judgment.
TENTATIVE RULING #13: SIDE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS GRANTED.
July 31, 2026 Dept. 9 Civil Tentative Rulings
NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999). NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M.
ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M.
THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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