Motion for Summary Judgment and/or Adjudication
In light of the above, the Court finds that the two actions do not involve common questions of law or fact. Thus, the motion to consolidate is DENIED.
Moving party to give notice. 112 Nguyen v. Le 2024-01420730
Motions to Be Relieved as Counsel of Record - GRANTED
The unopposed motions of attorney William Kersten of Kersten & Associates to be relieved as counsel for Defendants Lan Le and Tiffany Le are GRANTED.
Service on the clients and on all other parties who have appeared in the case was proper and all required forms containing the requisite information were filed pursuant to California Rules of Court, rule 3.1362.
The order will take effect once moving attorney files proof of service of the signed order (MC-053) on the clients. Moving attorney to give notice. 113 Nguyen v. Westminster Manor Apartment 2024-01442534
Motion for Summary Judgment and/or Adjudication - DENIED
Defendant WESTMINSTER MANOR APARTMENT (hereinafter “Defendant”) moves for summary judgment on the grounds that the parties entered a GENERAL RELEASE OF CLAIMS AND WAIVER pursuant to Civil Code section 1542 on August 1, 2024 which extinguished all of Defendant’s obligations to Plaintiff, including, but not limited to water intrusion and damage, mold, gas leak, and any alleged injury, discomfort, or inconvenience, suffered by Plaintiff during her tenancy through the date of vacating the premises.
The court notes that service of the motion may not have been proper. When utilizing electronic service, the proof of electronic service may be made in essentially the same manner as provided for service of papers by mail (CCP § 1013a), except that the declaration of service does not need to state that the person making the service is not a party to the action, and must state:
• — the electronic service address of the person making the service in addition to that person’s residence or business address; • — the date of the electronic service; • — the name and electronic service address of the person served; and • — that the document was served electronically. [CCP § 1013b
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Here, Defendant fails to list the electronic service address of the person making the service in the proof of service.
As to the merits, a defendant moving for summary judgment must “show” that either: • one or more elements of the “cause of action ... cannot be established”; OR • there is a complete defense to that cause of action. [CCP § 437c(p)(2)]
Defendant argues there is a complete defense to the Plaintiff’s cause of action for Negligence: “the Release has extinguished Ms. Nguyen’s negligence cause of action for alleged water intrusion and damage, mold, and gas leak and WMA is entitled to summary judgment.” (Motion page 6:10-12.)
Notably, to “show” a complete defense, defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. [Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.]
Thus, where a defense has several elements, lack of substantial evidence on any element bars relief, “even if the plaintiff failed to introduce a scintilla of evidence challenging that element.” [Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.]
Additionally, the moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff's claim “in order to resolve any evidentiary
doubts or ambiguities in plaintiff’s [opposing party’s] favor.” [Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, 74.]
Defendant’s Answer, filed on 4/23/2025, did not include the Defense of Release. (See ROA 10.) Pursuant to Baker v. Ferrel (1947) 78 Cal.App.2d 578, 579, “a release is an affirmative defense which must be specially pleaded”.
Moreover, Defendant fails to set forth, let alone address, the elements of the affirmative defense of Release. Defendant cites to Civ. Code § 1541; see Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366.)
In Skrbina, the Court of Appeals explained: “Civil Code section 1541 provides: “An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration.” In general, a written release extinguishes any obligation covered by the release’s terms, provided it has not been obtained by fraud, deception, misrepresentation, duress, or undue influence. “The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding; but it is also a general rule that the assent of a party to a contract is necessary in order that it be binding upon him, and that, if the circumstances of a transaction are such that he is not estopped from setting up his want of assent, he can be relieved from the effect of his signature if it can be made to appear that he did not in reality assent to it.” [Citations.]” (Skrbina v.
Fleming Companies (1996) 45 Cal.App.4th 1353, 1366–1367.)
Here, Defendant simply argues, “The unambiguous language of the Release recites that a dispute between Ms. Nguyen and WMA arose related to water intrusion and damage, mold, and alleged gas leak. (Release Sections B and C.)” [Motion page 6:3-6.]
However, Defendant has not established Plaintiff read and understood the instrument, or that there was an absence of fraud, deception, misrepresentation, duress or undue influence.
More importantly, the Release has not been properly authenticated. While all that is required to authenticate a writing is that there be “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is” (Evid.Code § 1400; see Landale- Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1409), Defendant has failed to do so.
In support of the Motion, Defendant submits the Declaration of Krystalynn Phan “an employee” of “Aynem Investments LP” which owns the Westminster Manor Apartment property. While Ms. Phan declares “The facts set forth herein are based on my personal knowledge”, this form allegation is merely the declarant’s conclusion. It is not sufficient to show the declarant’s competency she has not established the facts stated are matters as to which she would presumably have knowledge. [Snider v. Snider (1962) 200 Cal.App.2d 741, 753-754.]
Ms. Phan fails to set forth her job title, or that she worked for Defendant at the time the lease documents or release were executed. She does not appear to be a witness to the execution of the release itself. She did not sign the release. Also, although she mentions the release at ¶5 of her Declaration, she does not state, for example, “Attached hereto as Exhibit A is a true and correct copy of the Release.”
As such, Ms. Phan does not appear to have personal knowledge of the facts attested to, and the evidence submitted in the Notice of Lodging (ROA 38) has not been authenticated.
Therefore, the burden did not shift to Plaintiff to create a triable issue of material fact, and the Motion for Summary Judgment is DENIED.
Court to give notice.