Gwendolyn S. Faulkner v. Kent Ciucci, et al.

paragraphs 53 and 54 of the SAC’s Third Cause of Action for concealment. [SAC, Exh. 3 to DCE at ¶¶ 22-23, 29, 45, 52-54, 62.]

In their Notice of Motion, Defendants identify 32 “alleged claims” in Plaintiff’s causes of action. [Defendant’s Notice of Motion at 1-4.] In their moving Separate Statement, Defendants seek to summarily adjudicate 26 “issues.” [See Plaintiff’s Response to Defendants’ Separate Statement at 1-32.] Those “issues” relate to the following alleged misrepresentations Defendants made to Plaintiff:

1. License agreement; 2. Building permits; 3. Pool equipment; 4. Wireless pool system; 5. Fountain; 6. Irrigation system; 7. Boiler; 8. Water heater; 9. Smoke alarms; 10. Lights on the path; 11. Closet doors; 12. Garage drains; 13. Pool deck and tiles; 14. Fireplaces; 15. Leaks; 16. Electrical work; 17. Door jambs; 18. Wall blocking the washer door; 19. Lights along the driveway were missing or not functional; 20. Exposed plumbing in closets; 21. Lack of shower doors; 22. Dryer not functioning; 23. Utility costs; 24. The kitchen sink had mold; 25. Light fixture in the bathroom and various lights throughout the house; and 26. Home alarm system.

Legal Standard.

Summary judgment or adjudication is warranted where there are no triable issues of material fact, and the moving party is entitled to judgment as a matter of law. [Code Civ. Proc. § 437c, subds. (c), (f); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.] Further, a “motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” [Code Civ. Proc. § 437c, subd. (f)(1).]

Courts follow a three-step process when reviewing a motion for summary judgment or adjudication: (1) identify the issues outlined by the pleadings; (2) evaluate whether the moving party has disproved the opponent’s claims; and (3) assess if the opposition has shown there is a triable factual issue. [Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.]

A motion for summary adjudication proceeds “in all procedural respects as a motion for summary judgment.” [Code Civ. Proc. § 437c, subd. (f)(2).] The initial burden always rests on the moving party to make a prima facie showing that no material factual issues are in dispute. [Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453.] When a defendant files for summary judgment or adjudication, they satisfy their initial burden if they prove that at least one element of the cause of action cannot be established or that a complete defense exists. [Code Civ. Proc. § 437c, subd. (p)(2).] Failure to meet this burden results in denial of the motion, ending the inquiry. [Id.]

To meet the burden of proving that a cause of action cannot be established, a defendant must demonstrate that the plaintiff does not possess, and cannot reasonably obtain, the needed evidence. [Aguilar, 25 Cal.4th at 854.] Merely pointing out the lack of evidence is not enough. [Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.] This supporting evidence may include affidavits, declarations, admissions, depositions, answers to interrogatories, and matters subject to judicial notice. [Aguilar, 25 Cal.4th at 855.]

Even if the moving defendant meets its burden, the opposing plaintiff can still defeat a summary judgment or summary adjudication motion by presenting evidence that raises a triable issue of fact. [Aguilar, 25 Cal. 4th at 849-850.] The plaintiff cannot rely solely on allegations or denials in its pleadings; instead, it must present specific facts indicating the existence of a triable issue of material fact concerning the cause of action. [Code Civ. Proc. § 437c, subd. (p)(2); Choochagi, 60 Cal.App.5th at 453.] If the plaintiff fails to do so, summary judgment or summary adjudication should be granted. [See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.]

The court must liberally construe the evidence presented by the party opposing summary judgment or adjudication, resolving all doubts and making all reasonable inferences in favor of that party. [Aguilar, 25 Cal.4th at 844-845.] When reviewing such a motion, the court must consider what inferences a factfinder could reasonably draw that favor the opposing party. [Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.] The main role of the court is to identify issues, not to decide them; only clear and indisputable inferences can lead to a legal resolution. [Ibid.] If evidence conflicts, factual disputes must be resolved during trial. [Ibid.] Furthermore, the trial court cannot weigh evidence as a factfinder would to determine credibility, nor can it grant summary judgment based on credibility assessments. [Id. at 840.]

Defendants’ RJN and Evidentiary Objections.

Defendants’ request to judicially notice the original complaint and the SAC is GRANTED. [Evid. Code § 452, subd. (d).]

The Court rules on Defendants’ evidentiary objections as follows:

DEFENDANTS’ OBJECTIONS No(s). Cite Ruling 1-11 Plaintiff’s Decl. at ¶¶ 4-8, 12-13, OVERRULED. 16, and 18. 12 Plaintiff’s Exhs. 6 and 8. SUSTAINED. The letters are inadmissible 14 hearsay. [Evid. Code § 1200.] 13 Plaintiff’s Exhs. 7 and 22. OVERRULED. [See Code Civ. Proc. § 2025.620; 26 Cal. Rules of Ct., rule 3.1354.] 15-17 Plaintiff’s Exhs. 9, 10, 11. SUSTAINED. The e-mails are inadmissible hearsay. [Evid. Code § 1200.] 18 Plaintiff’s Exh.

12. SUSTAINED because it is cumulative of Plaintiff’s Exhibit 10 and inadmissible hearsay. [Evid. Code §§ 352, 1200.] 19 Plaintiff’s Exh.

13. SUSTAINED as irrelevant. [Evid. Code §§ 210, 350, 351.] 20 Plaintiff’s Exh.

14. SUSTAINED on the grounds asserted. [Evid. Code §§ 210, 350-352, 1201.] 21-22 Plaintiff’s Exhs. 15 and 16. OVERRULED. 23-24 Plaintiff’s Exhs. 17 and 18. SUSTAINED as it lacks authentication and foundation. [Evid. Code §§ 1400-1401.] 25 Plaintiff’s Exh.

19. SUSTAINED as it lacks foundation. [Evid. Code §§ 403, 702.] 27-28 Plaintiff’s Exhs. 24, 25, and 27. OVERRULED. 30 29 Plaintiff’s Exh.

26. SUSTAINED. The text messages are inadmissible hearsay. [Evid. Code § 1200.]

Discussion.

The threshold issue raised in Defendants’ motion is whether this Court could summarily adjudicate any of the 26 “issues” identified in their moving separate statement. The statute plainly states that this Court shall grant summary adjudication “only if it completely disposes of a cause of action.” [Code Civ. Proc. § 437c, subd. (f)(1).] The only exception to this rule is by stipulation, which the parties have not shown here. [Id. at subd. (t).]

Defendants argue that each alleged misrepresentation and/or omission is a separate cause of action subject to summary adjudication. [Motion at 9-10.] They contend that a “cause of action” for summary adjudication purposes does not need to be limited to how the pleading frames it: “[A] party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action...” [Id. at 9 (quoting Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1118).] Here, Defendants argue that Plaintiff has grouped multiple alleged misrepresentations and concealments within each of her causes of action, with each alleged statement or omission constituting a separate and distinct factual basis for liability. [Ibid. (citing

Blue Mountain Enterprises, LLC v. Owen (2022) 74 Cal.App.5th 537, 549, and Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854).]

Plaintiff disagrees with Defendants’ argument. She contends that Defendants are not seeking to adjudicate any of the causes of action but are instead seeking only to dispose of some of the factual allegations underpinning her claims. [Opp. at 14-17, including a citation to Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1259-1260).] Based on this reasoning, by failing to consider all the allegations, Defendants leave the causes of action relevant to a full trial on the merits untouched. Further, in contrast to Defendants’ view, Plaintiff characterizes her allegations as part of the same primary right – the right to be free from fraud in the purchase of the property with a single injury. [Opp. at 15-17.] Therefore, Plaintiff claims that the motion is procedurally incorrect and should be denied.

Defendants’ arguments and the authorities they cited are unpersuasive. Neither Lilienthal, Edward Fineman, nor Blue Mountain applies here.

Lilienthal involved allegations within the same count that clearly included two separate and distinct claims, which could have been pled separately as two causes of action seeking different damages based on different facts. [See Lilienthal, 12 Cal.App.4th at 1854.] The single claim against the defendant bank in Edward Fineman for wrongfully honoring checks over two years actually concerned multiple claims, each divisible by a check. [Edward Fineman, 66 Cal.App.4th at 116.] Thus, the appellate court held that summary adjudication on statute-oflimitations grounds was proper in 23 of the 83 checks. [Id. at 1115.] In Blue Mountain, there was a single contract but different obligations with different damages – soliciting customers versus soliciting employees to come and work. [Blue Mountain, 74 Cal.App.5th at 549-550.]

Therefore, for this case to fall under the rule in Lilienthal, Edward Fineman, and Blue Mountain, there must be separate and distinct wrongful acts or obligations that are subject to otherwise prohibited piecemeal adjudication because they involve the actual invasion of different primary rights. [See Lilienthal, 12 Cal.App.4th at 1853.] That is not the case here because Defendants’ alleged misrepresentations all aimed to persuade Plaintiff to purchase the Property. [SAC, Exh. 3 to DCE at ¶ 42.]

Consequently, these misrepresentations are closely connected both in fact and in the harm Defendants supposedly caused, namely the harm resulting from Plaintiff buying the Property she might not have otherwise purchased. [See Hindin, 118 Cal.App.4th at 1258 (a defendant who allegedly breached a single primary right in two ways cannot obtain summary adjudication on the ground that some – but not all – of the underlying claims were supported by probable cause because doing so would not eliminate the entire malicious prosecution cause of action).]

Conclusion.

Plaintiff in her SAC claims multiple misrepresentations that are so interconnected in their purpose and the damages they caused that they cannot be divided into separate causes of action. Under Code of Civil Procedure section 437c, subdivision (f)(1), and without a stipulation under section (t), the Court refuses Defendants’ request to assess whether each misrepresentation is actionable individually. The resolution of such issues may be more appropriate in a motion in

limine. Therefore, the summary-adjudication motion is DENIED. Defendants’ RJN is GRANTED while their evidentiary objections are SUSTAINED IN PART AND OVERRULED IN PART.

Plaintiff shall prepare the Proposed Order consistent with this Tentative Ruling.

NOTE RE TENTATIVE RULING

This tentative ruling becomes the court’s order, and no hearing shall be held unless one of the parties contests it by following Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by email or by calling the Calendar Department at 831-647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.

6