Motion for Summary Judgment
(Stanley Mosk Courthouse: Dept. 617) August 17, 2026 DEPARTMENT 617 LAW AND MOTION RULINGS
617 Date: 8-17-26 Case #: 23STCV28508 Trial Date: 10-12-26 SUMMARY JUDGMENT MOVING PARTY: Defendants, Samuel Co and Excel Asia Financial Services, Inc. RESPONDING PARTY: Plaintiff, Gaudencio Yap RELIEF REQUESTED Motion for Summary Judgment
SUMMARY OF ACTION Plaintiff Gaudencio Yap and Defendant Samuel Co formed nominal Defendant Paradigm Insurance and Financial Services to share in the net profit of Paradigm's income, which consists of commissions on insurance policies. Plaintiff and Co are 50-50 owners of Paradigm. Plaintiff alleges that Co converted corporate assets for himself, in breach of his fiduciary duty as co-owner, officer, and director of Paradigm. Plaintiff claims that Co concealed the payments of commissions owed to Paradigm and diverted the payments to himself.
On February 5, 2024, Plaintiff filed a First Amended Complaint for: (1) Breach of Fiduciary Duty; (2) Abuse of Control; and (3) Unjust Enrichment. Defendant Excel Asia Financial Services, Inc. (Excel) was substituted in as a defendant on January 22, 2025.
RULING: Denied.
Evidentiary Objections: The Court does not rule on the evidentiary objections as they are immaterial to disposition of the motion. (Code Civ. Proc., Sec. 437c, subd. (q).)
Co and Excel move for summary judgment against Plaintiff. [1] Co argues that no triable issue exists as to Plaintiff's claims because Plaintiff is not a licensed insurance agent. Therefore, any agreement calling for insurance commissions is unenforceable and Plaintiff cannot recoup the commissions. Excel argues no triable issue exists because it is a separate legal entity and not a party to the commission-sharing agreement.
Plaintiff opposes the motion, contending that Co's argument is misplaced as Plaintiff is asserting a derivative action on behalf of Paradigm and thus the injury and any recovery is Paradigm's. [2] He further argues that Excel Asia's liability is based on its receipt of improperly diverted assets. Because Defendants fail to show that no triable issue of material fact exists, their motion is denied.
The pleadings frame the issues for motions, "since it is those allegations to which the motion must respond. (Citation.)" (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-83
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The purpose of a motion for summary judgment or summary adjudication "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." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)
"Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and 'all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
"On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact." (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)
A defendant moving for summary judgment "has met his or her 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 . . . cannot be established." (Code Civ. Proc., Sec. 437c, subd. (p)(2).)
"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 the cause of action or a defense thereto." (Ibid.)
"When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment." (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., Sec. 437c, subd. (c).)
"An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork." (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)
The sole basis for Co's motion is Plaintiff's inability to individually recover the insurance commissions because he is not a licensed insurance agent. A person who is not a licensed insurance agent cannot receive insurance commissions. (Fewel & Dawes, Inc. v. Pratt (1941) 17 Cal.2d 85, 90; Ins. Code, Sec. 1631.)
But Plaintiff's complaint is a derivative action against Co on behalf of Paradigm. [See generally Compl.] Co admits that Paradigm is a "licensed brokerage" that can lawfully receive commissions. [Reply at p. 7.]
Co's "bank-shot" argument that the derivative action cannot be maintained because the recovery of commissions for Paradigm would "flow" back to Plaintiff as a 50% owner is insufficient to defeat Paradigm 's ability to recover for its own injury. [Id. at p. 3.] Where the proceeds eventually end up has no bearing on the derivative claim and Co provides no authority to support his position. [3]
The asserted undisputed facts that Plaintiff co-owns Paradigm and does not have an insurance agent license and that Paradigm's sole source of income is from placed insurance policies therefore cannot establish that no triable issue exists as to Plaintiff's claims.
Excel likewise fails to meet its burden. Its proffered undisputed facts regarding its existence as a separate legal entity, non-party to the commission-sharing agreement, and lack of affiliation with Plaintiff or Paradigm do not negate Plaintiff's allegations of its wrongful receipt of diverted assets. [Compl. P.P. 24-26.] (See American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1481-82.) These facts thus cannot establish a lack of triable issue of material fact.
Co and Excel's motion is therefore denied. Co and Excel to give notice.
[1] Co and Excel also alternatively request summary adjudication in their memorandum of points and authorities. [Mot. at p. 5.] Typically, the notice of motion must specify "the specific cause of action, affirmative defense, claims for damages, or issues of duty" sought to be adjudicated. (Cal. Rules of Court, rule 3.1350(b); Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498.) In any event, Co and Excel rely on the same argument and asserted undisputed material facts for all 3 causes of action. Because these facts are insufficient to establish an absence of triable issues as to any of Plaintiff's claims, Co and Excel are not entitled to summary adjudication.
[2] The Court notes that Plaintiff filed two oppositions. The Court treats the July 28, 2026 opposition as the revised and operative opposition.
[3] Co does not raise, and the Court does not address, whether the potential invalidity of the commission-sharing agreement precludes Plaintiff's standing to bring the derivative action. | Home -->)" -->