Sophie Yeh v. The Harker School, et al.

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 Honorable Nahal Iravani-Sani, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230

DATE: 09/02/2026 TIME: 9:00 A.M. and 9:01 A.M.

LINE # CASE # CASE TITLE RULING LINE 1 23CV418929 Sophie Yeh MOTION TO SUMMARY JUDGMENT/ADJUDICATION v. Michael Bench et al. Please Ctrl Click (or scroll down to) Line 1 LINE 2 25CV459519 Mathew Brenner et al Off Calendar v. Steve Wozniak, et al. LINE 3 25CV466769 Francisco Contreras MOTION FOR ATTORNEY’S FEES Chaires v. General Motos LLC et Please Ctrl Click (or scroll down to) Line 3 al LINE 4 25CV467169 Wilkinson et al MOTION TO SET ASIDE DISMISSAL v. Ninh Tang, et al Notice is proper.

The Court has received no opposition from Defendant. “[T]he failure to file an opposition creates an inference that the motion or demurrer is meritorious.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Good Cause Appearing, Plaintiff’s motion is GRANTED. Plaintiff to prepare the final order, accompanied by the necessary Forms EFS-020, within 7 days of the date of the hearing.

LINE 5 25CV470868 Thomas Huang et al. MOTION: ADMISSIONS DEEM ADMITTED v. Tuan Luong et. al. Notice is proper.

The Court has received no opposition from Defendant Tuan Luong. “[T]he failure to file an opposition creates an inference that the motion or demurrer is meritorious.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Good Cause Appearing, the motion is GRANTED. The truth of all specified facts in the Request for Admissions, Set One, 1-7 propounded by Plaintiff Thomas Huang on Defendant Tuan Luong on February 12, 2026, shall be deemed admitted. Plaintiff to prepare the final order, accompanied by the necessary Forms EFS-020, within 7 days of the date of the hearing.

Calendar Line 1 Case Name: Sophie Yeh v. The Harker School, et al. Case No.: 23-CV-418929

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Cross- Complaint of Cross-Complainant The Harker School by Cross-Defendant Commercial Tree Care

Factual and Procedural Background

This is a cross-action for fraud and related claims brought by cross-complainant The Harker School (“Harker”) against cross-defendant Commercial Tree Care (“CTC”).

According to the cross-complaint, on March 21, 2023, Sophie Yeh (“Yeh”) was a visiting student on Harker’s Upper School campus in San Jose. (Cross-Complaint at ¶ 1.) At approximately 1:30 p.m. on March 21st, a coastal redwood tree on the Upper School campus was uprooted and fell during a storm, its branches hitting and injuring Yeh, who was walking across the campus at the time. (Ibid.)

At the time of the incident, and for approximately 13 years prior to the incident, Harker retained CTC, an International Society of Arboriculture (“ISA”) certified arborist company, to provide tree care services to Harker’s campuses. (Cross-Complaint at ¶ 2.) CTC’s website states: “Our team of ISA certified arborists has extensive experience in assessing tree health and safety. With over 20 years of industry experience, they provide expert recommendations to maintain the vitality and safety of your trees.” (Id. at ¶ 4.) In addition, Harker staff met with CTC annually to walk the grounds of Harker’s campuses to identify any trees that may need to be serviced, pruned, removed or other care. (Id. at ¶ 5.)

Harker alleges CTC knowingly, intentionally, and falsely with deceit represented to Harker, through written and oral conversations and contracts and its website, its capabilities, its scope of work, and its assessment of trees on Harker’s campuses. (Cross-Complaint at ¶ 21.) CTC acted with an intent to deceive by making representations and promises related to their services and expertise, knowing they would not in fact provide those services to Harker. (Id. at ¶ 27.)

Harker also alleges CTC breached its duty and failed to perform obligations under the written and/or oral contracts, including but not limited to, failing to perform required assessments of the trees on Harker’s campuses, failing to communicate necessary recommendations pertaining to trees on the campuses, and failing to communicate issues identified with and observed in the trees on campus. (Cross-Complaint at ¶¶ 34, 38.)

On July 11, 2023, Yeh filed a complaint against Harker and other defendants alleging a single cause of action for negligence/premises liability. On September 23, 2025, Harker filed the operative cross-complaint against CTC alleging causes of action for: (1) fraud; (2) breach of contract; (3) negligence; (4) equitable indemnity; (5) apportionment/contribution; and (6) Bus. & Prof. Code § 17200.

On November 13, 2025, CTC filed its answer to the cross-complaint setting forth a general denial and 43 affirmative defenses.

On November 20, 2025, Harker dismissed the sixth cause of action from the cross-complaint.

On June 22, 2026, CTC filed the motion presently before the court, a motion for summary judgment, or in the alternative, summary adjudication to the cross-complaint. Harker filed written opposition and evidentiary objections. CTC filed reply papers. Yeh filed a response taking no position on the motion.

Trial is scheduled for October 12, 2026.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

CTC argues there is no triable issue of material fact as to the claims in the cross-complaint and thus judgment should be entered as a matter of law. In the alternative, CTC moves for summary adjudication of the fourth and fifth causes of action and the first, second, fifteenth, and seventeenth affirmative defenses.

Motion for Summary Adjudication

As a procedural matter, the court notes that cross-defendant CTC’s alternative motion for summary adjudication does not comply with the rules of court.

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The separate statement filed in support of the motion must be in a two-column format. (Cal. Rules of Court, rule 3.1350(d)(3).) “The statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in the same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Ibid.)

“The requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) As one court explained:

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for SAI and summary judgment to determine quickly and efficiently whether material facts are disputed.”

(United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.)

“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b), emphasis added.)

“ ‘ “Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.” ’ [Citation.] And if the separate statement does not contain all material facts on which the motion is based, the moving party has failed to meet its initial burden of production and is ‘not entitled to summary adjudication as a matter of law.’ [Citations.]” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1297.)

According to the notice of motion, cross-defendant CTC requests summary adjudication of the fourth and fifth causes of action and the first, second, fifteenth, and seventeenth affirmative defenses. The separate statement however, filed in support of the motion, does not refer to the motion for summary adjudication as to these causes of action and affirmative defenses. Thus, it is unclear which material facts and supporting evidence are connected to the alternative motion for summary adjudication.

And it is not the job of the court to speculate or guess which material facts address the motion for summary adjudication. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 [“[W]hen the ‘fact’ is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court, because the statutory purposes are not furthered by unhighlighted facts.”]; see also Albrechtsen v. Bd. of Regents of Univ. of Wisconsin Sys. (2002) 309 F.3d 433, 436 [“Courts are entitled to assistance from counsel, and an invitation to search without guidance is no more useful than a litigant’s request to a district court at the summary judgment stage to paw through the assembled discovery material. ‘Judges are not like pigs, hunting for truffles buried in’ the record. [Citation.]”].)

Therefore, the court declines to consider the alternative motion for summary adjudication as the request is not properly before the court. Instead, the court addresses the instant application as only a motion for summary judgment. (See Young v. Super. Ct. (1986) 179 Cal.App.3d 28, 32 [Trial courts possess the ability to enforce abidance to the “separate statement” requirements, as the failure to comply may, in the court’s discretion, constitute a sufficient ground for denying a motion for summary adjudication of issues.].)

Harker’s Evidentiary Objections

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court...” (Code Civ. Proc., § 437c, subd. (c).)

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

In opposition, Harker filed objections to evidence submitted with the moving papers. The court however declines to rule on the objections as they are not material to the outcome of the motion for reasons articulated below.

Timeliness

In opposition, Harker argues the motion should be denied as cross-defendant CTC did not comply with the mandatory notice requirements set forth in Code of Civil Procedure section 437c, subdivision (a)(2).

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c, subd. (a)(2).)

“[A] trial court does not have authority to shorten the minimum notice period for summary judgment hearings absent the express consent of the parties.” (Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768 (Urshan).) Also, a trial court abuses its discretion by continuing the summary judgment hearing in an effort to provide the required statutory notice. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258 [trial court abused its discretion by continuing noticed hearing for only four days, in an effort to provide 80 days’ notice].)

Moreover, “waiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.” (Urshan, supra, 120 Cal.App.4th at p. 768.) According to court records, cross-defendant CTC filed and served its motion for summary judgment on June 22, 2026 with a hearing date set for January 27, 2027. As the hearing falls after the date scheduled for trial, CTC moved ex parte to advance a hearing date before the October 12, 2026 trial date. The trial court granted the application but scheduled the motion for hearing on September 2, 2026, a date which violates the mandatory 81-day notice period.

As stated above, the court does not have authority to shorten the notice period. Nor did the parties consent to hearing the motion on September 2, 2026.

In reply, CTC does not dispute the violation of the minimum notice requirements set forth in Code of Civil Procedure section 437c, subdivision (a)(2). Instead, CTC contends Harker did not object at any time to the setting of the motion by the court. But, as stated above, silence by the opposing party does not equate to a waiver of the statutorily mandated notice period. CTC also asserts there is no prejudice to hearing the motion on the date set by the court as Harker has had the motion for an ample period of time to provide a substantive opposition.

CTC however does not cite any legal authority for the proposition that absence of prejudice is sufficient to waive the 81-day notice period. Nor is the court aware of any such authority. As a consequence, the motion is denied on this ground alone. To the extent that CTC requests a continuance of the trial, as suggested in the reply papers, it should file the appropriate motion for consideration by the court.

Legal Standard

Any party may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “The object of the summary judgment procedure is ‘to cut through the parties’ pleadings’ to determine whether trial is necessary to resolve their dispute. [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1020 (Spinks).)

“[T]he 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...” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Spinks, supra, 171 Cal.App.4th at p. 1021.)

If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.)

A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. [Citation.] ‘A motion for summary adjudication...shall proceed in all procedural respects as a motion for summary judgment.’ [Citation.]” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630.)

“[S]ummary judgment (or summary adjudication) is a drastic remedy and should be used with caution. [Citation.] Because summary judgment is a drastic procedure all doubts as to the propriety of granting a motion for summary judgment should be resolved in favor of the party opposing the motion. [Citations.]” (Tully v. World Savings & Loan Assn. (1997) 56 Cal.App.4th 654, 660; see Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675, 684 [“The drastic remedy of summary judgment may not be granted unless reasonable minds can draw only one conclusion from the evidence.”].)

Merits

The operative cross-complaint alleges claims primarily for fraud, breach of contract, and negligence. There are also derivative causes of action for indemnity, apportionment and contribution.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“The elements of a breach of contract claim are that a contract was formed; that the plaintiff did everything required by the contract; that the defendant did not do something required by the contract; and that the plaintiff was harmed as a result.” (CSAA Ins. Exchange v. Hodroj (2021) 72 Cal.App.5th 272, 276.)

“The essential elements of a cause of action for negligence are: (1) the defendant’s legal duty of care toward the plaintiff; (2) the defendant’s breach of duty – the negligent act or omission; (3) injury to the plaintiff as a result of the breach – proximate or legal cause; and (4) damage to the plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

As to the fraud, breach of contract, and negligence causes of action, the court finds that crossdefendant CTC fails to meet its initial burden on summary judgment. The supporting memorandum of points and authorities offers only a cursory discussion with respect to the breach of contract and negligence causes of action. Rather, the memorandum is mainly addressed to the fraud claim. But, as to the fraud cause of action, the moving papers do not dispose of any alleged fraudulent misrepresentations in connection with CTC’s website by reference to admissible evidence. (See Cross-Complaint at ¶ 21; see also Salasguevara v.

Wyeth Labs (1990) 222 Cal.App.3d 379, 384 [“It is the moving party’s burden to make a sufficient showing that the claim is entirely without merit and if that showing is deficient summary judgment must be denied.”].) Moreover, to the extent that CTC argues that risks and assessments regarding the Redwood trees were communicated to Harker, the court finds Harker raised a triable issue of fact as to this point which also warrants denial of the instant motion for summary judgment. (See Harker’s Disputed Facts at Nos. 22, 24; Harker’s Additional Facts at Nos. 2-3, 11-12; see also Gleason v.

Klamer (1980) 103 Cal.App.3d 782 [appellate court reversed trial court’s order granting summary judgment because there was a single triable issue of fact].)

Accordingly, the motion for summary judgment to the cross-complaint is DENIED.

Disposition

The motion for summary judgment to the cross-complaint is DENIED.

The court will prepare the order.

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