On 01/19/2018 ADRINEH ASATOURIAN filed a Contract - Other Contract lawsuit against ZELDA ABERIAN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is RALPH C. HOFER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
RALPH C. HOFER
ASATOURIAN ADRINEH AN INDIVIDUAL
HARATOUNIANS EDWIN AN INDIVIDUAL
ABERIN ZAYDA AN INDIVIDUAL
ABERIAN ZELDA AN INDIVIDUAL
ABERIN ZELDA AN INDIVIDUAL
KRAMAR STEVEN D.
GEORGE SCHWARTZ LAW OFFICES OF
7/10/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMM...)
5/13/2020: Objection - OBJECTION PLAINTIFFS' OBJECTIONS TO DEFENDANT ZAYDA ABERIN'S (1) SUPPLEMENT TO MOTION FOR SUMMARY JUDGMENT; SUPPLEMENTAL SEPARATE STATEMENT; DECL OF ZAYDA ABERIN; DECL OF GEORGE SCHWARTZ A
4/17/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...)
3/6/2020: Proof of Service (not Summons and Complaint)
2/14/2020: Request for Judicial Notice
2/14/2020: Proof of Service (not Summons and Complaint)
7/31/2019: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER MINUTE ORDER OF 7/25/2019 FOR DEPARTMENT D)
6/13/2019: Notice of Ruling
6/13/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE MEDIATION AND DISCOVERY; ORDER TO SHOW C...)
1/16/2019: Minute Order - Minute Order (Status Conference re: Mediation and Discovery)
1/19/2018: Notice - Notice of order to show cause RE failure to comply with trial court delay reduction act
4/4/2018: Minute Order - Minute order entered: 2018-04-04 00:00:00
4/12/2018: Legacy Document - LEGACY DOCUMENT TYPE: First Amended Complaint
6/1/2018: Proof of Service (not Summons and Complaint)
9/13/2018: Case Management Statement
9/17/2018: Proof of Service (not Summons and Complaint)
6/29/2018: Notice of Posting of Jury Fees -
Hearing07/26/2021 at 09:00 AM in Department D at 600 East Broadway, Glendale, CA 91206; Jury TrialRead MoreRead Less
Hearing07/15/2021 at 09:00 AM in Department D at 600 East Broadway, Glendale, CA 91206; Final Status ConferenceRead MoreRead Less
Hearing06/29/2021 at 08:30 AM in Department D at 600 East Broadway, Glendale, CA 91206; Order to Show Cause Re: Mandatory Settlement ConferenceRead MoreRead Less
Docketat 09:00 AM in Department D; Hearing on Motion for Summary Judgment (or alternatively, Summary Adjudication filed on behalf of Defendants Zayda Aberin and Zelda Aberin) - Held - Motion DeniedRead MoreRead Less
Docketat 09:00 AM in Department D; Trial Setting Conference - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Judgment or alternatively, Summ...)); Filed by ClerkRead MoreRead Less
DocketObjection (Plaintiffs' Objections to Defendant Zayda Aberin's Opposition in Reply to Plaintiffs Sur-Reply to Motion for Summary Judgment); Filed by ADRINEH, ASATOURIAN (Plaintiff); EDWIN, HARATOUNIANS (Plaintiff)Read MoreRead Less
DocketProof of Service by Mail; Filed by ZAYDA, ABERIN (Defendant)Read MoreRead Less
DocketOpposition (Opposition in Reply to Plaintiff Sur Reply); Filed by ZAYDA, ABERIN (Defendant)Read MoreRead Less
Docketat 09:30 AM in Department D; Hearing on Ex Parte Application (for Leave to File Supplemenal Pleadings in Support of Defendant Zayda Aberin's Motion for Summary Judgment filed on behalf of Defendant Zayda Aberin) - Held - Advanced and HeardRead MoreRead Less
DocketRequest (COPY OF COMPLAINT AND CIVIL CASE COVER SHEET ); Filed by Interested PartyRead MoreRead Less
DocketRequest; Filed by Interested PartyRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil CaseRead MoreRead Less
DocketNotice of Case Management ConferenceRead MoreRead Less
DocketNotice (of order to show cause RE failure to comply with trial court delay reduction act)Read MoreRead Less
DocketSummons; Filed by nullRead MoreRead Less
DocketSummons FiledRead MoreRead Less
DocketComplaint filed-Summons IssuedRead MoreRead Less
DocketComplaint filed-Summons Issued; Filed by nullRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
Case Number: EC067898 Hearing Date: July 10, 2020 Dept: NCD
Case Number: EC 067898
Date: 7/10/20 Trial date: April 20, 2020
Case Name: Asatourian, et al v. Aberin, et al.
MOTION FOR SUMMARY JUDGMENT
(OR, in the Alternative, Summary Adjudication)
[CCP § 437c; CRC 3.1350 et seq.]
Moving Party: Defendant Zayda Aberin
Responding Party: Plaintiffs Adrineh Asatourian and Edwin Haratonians
Summary judgment or alternatively, for a Summary Adjudication against plaintiffs and in favor of defendant Zayda Aberin
Causes of Action from First Amended Complaint
1) Breach of Written Contract
2) Breach of Oral Contract
3) Unjust Enrichment
SUMMARY OF COMPLAINT:
Plaintiffs Adrineh Asatourian and Edwin Haratonians allege that they are the owners of several home health and hospice facilities, and beginning in May of 2016, plaintiffs retained the services of defendants Zelda Aberin and Zayda Aberin for assistance with organizing, licensing and operating the facilities. The FAC alleges that defendants were the general partners holding themselves out as, among other names, Zelda Aberin & Associates, carrying on a business consisting of advising and consulting home healthcare agencies and hospices in formation, licensing, and operating procedures, and that each defendant had a joint community of interest in the partnership, and were each agents of the partnership.
Plaintiffs allege that the terms of the required services were discussed orally, through text messages, and also memorialized in several written agreements between plaintiffs and defendants. The terms of the agreements required defendants to perform services for one facility, Beverly Court Congregate Living, including preparing, submitting and completing the application for CDPJ, providing consultation to construction contractors regarding constructing the facility pursuant to state regulations and fire marshal standards, providing all necessary policies, forms, and documents necessary to pass survey, assisting in ordering equipment and supplies to pass survey, providing education to staff, assisting in evaluating the competencies of the agency staff, and providing other services, as well as to locate suitable medical groups and insurance companies with which to enter into service agreements, and establishing business entities and registering the businesses with the California Department of Healthcare Services.
Through both written and oral communications, it was agreed the services would be expanded to all the facilities.
The FAC alleges that between May of 2016 and February of 2017, plaintiffs paid defendants compensation, registration fees, and, in many instances, expediting fees for the services for each of the facilities, in a sum totaling $123,761.90, and that despite assurances that the services were being performed in accordance with the oral and written agreements, defendants failed to complete a single task.
Plaintiffs allege that defendants have offered to rectify the situation, but have failed to do so, and have refused to return the sums paid for services. It is alleged that based on defendants’ promises to complete the agreements, plaintiffs have incurred significant expense in opening the facilities, and incurred costs for employees, mortgages, rent and utilities while awaiting completion of defendants’ assigned tasks, as well as expense to retain additional consultants to complete the services.
CCP § 437c (p): Burdens of Proof
Under CCP § 437c(p)(2) a defendant “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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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.”
CCP § 437c(f)(1) provides that “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.”
Defendant Zayda Aberin seeks summary judgment or adjudication on the ground plaintiffs will be unable to establish essential elements of their causes of action against this defendant, as there is no evidence of a contract or contractual consideration with defendant Zayda Aberin, so that there can be no breach of contract or unjust enrichment, and no evidence of fraud by Zayda or of any monies paid to Zayda, to support a claim of fraud.
As an initial matter, while the motion appears to seek summary adjudication, the notice fails to set forth what issues are sought to be adjudicated or the causes of action in connection with which defendant seeks such relief.
Under CRC Rule 3.1350(b):
“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 facts.”
The information is not stated specifically in the notice of motion, although the separate statement breaks down issues. The opposition objects on this ground. If summary judgment on the entire FAC cannot be granted, the court accordingly declines to consider the motion to the extent it seeks summary adjudication, for failure to specify the issues and causes of action sought to be summarily adjudicated in the notice of motion.
With respect to the first and second causes of action for breach of contract, to establish a breach of contract cause of action, plaintiffs must plead and prove the following elements: The existence of a contract; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807.
Defendant Zayda Aberin argues that plaintiffs cannot establish an essential element of their breach of contract claims, namely, the existence of a contract.
In support of the motion, plaintiff relies on the contract attached to the FAC as Exhibit A, which shows that it is entered into between Beverly Court Congregate Living, Inc. and “Zelda Aberin & Associates.” [Ex. A, FAC, Ex. A]. No other evidence is mentioned in the memorandum. This is arguably insufficient to meet defendant’s initial burden here, as there is no evidence submitted suggesting that Zayda Aberin is not associated with Zelda Aberin & Associates, and no evidence to suggest that Zayda Aberin did not enter into an oral contract with plaintiffs as alleged in the FAC.
The separate statement also relies on defendant Zayda Aberin’s answer to the FAC, and defendant Zayda Aberin’s responses to Form Interrogatories 50.1 through 50.6 to support the undisputed fact that defendant Zayda Aberin denies all of the allegations of the FAC and asserts that plaintiffs’ claims are barred because she was not a party to the contract. [Unnumbered UMF, apparently 2, and evidence cited]. The material offered is insufficient to support this fact.
A party may not rely on its own pleading to establish a fact in support of summary judgment. See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, n.7 (“It is generally understood, for instance, that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context.”)
A party also may not rely on its own responses to discovery to support such a motion. CCP § 2030.410 provides, in connection with interrogatories:
“At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party. It is not ground for objection to the use of an answer to an interrogatory that the responding party is available to testify, has testified, or will testify at the trial or other hearing.”
The responses here are not being used against the responding party, but in favor of the responding party, and are not considered.
The separate statement also states that there were no promises or assurances of any kind, or agreement with Zayda Aberin and no consideration offered to or requested by her, this time in reliance on plaintiffs’ responses to discovery. [Unnumbered UMF, apparently 3, and evidence cited]. It is held that where a plaintiff has had an adequate opportunity for discovery, plaintiff’s factually devoid responses to discovery requests may be held to “show” that one or more elements of plaintiff’s claim “cannot be established.” Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.
The separate statement cites to Exhibit D, Plaintiff’s responses to Form Interrogatories Nos. 50.1- 50.6, and Plaintiff’s responses to Special Interrogatories # 20, and also states that Plaintiff’s responses to defendant’s Requests for Documents requesting copies of contracts between plaintiffs and Zayda Aberin contain no contract between plaintiffs and defendant Zayda Aberin. [Unnumbered UMF, apparently 3]. However, a review of Exhibit C shows the discovery is that directed to Zayda Aberin, not plaintiffs, and the responses do not include responses to Form Interrogatories Nos. 50.1-50.2, only other interrogatories, and, in any case, the text of the form interrogatories at issue are not provided in the responses or elsewhere in the briefing. There are no responses to special interrogatories included at Exhibit C, and no responses to document demands. The cited evidence accordingly does not support the facts asserted.
The separate statement attaches as Exhibit D plaintiff’s responses to Special Interrogatories, which states, in response to Special Interrogatory No. 20, “Please IDENTIFY any communication or WRITING that relates to your allegation in paragraph 5 of your complaint that Zelda and Zayda Aberin were partners,” that “Responding Party will produce all response documents…” [Ex. D, p. 12]. However, this response does not establish that no documents were produced to show the existence of a contract between the parties. It also does not show that there is a lack of evidence that Zelda and Zayda Aberin were partners, without an evidentiary showing that the promised documents were in fact not produced.
This highlights the primary problem with the moving papers, which is that the papers are not accompanied by any admissible evidence or a request for judicial notice. There is no declaration of defendant attesting to the facts she was apparently willing to state in her answer and interrogatory responses, no declaration authenticating the “Exhibits” to the separate statement, including the discovery responses, and no request to judicially notice the FAC, and its attachment.
It is held specifically with respect to summary judgment proceedings:
“Documents obtained in discovery in response to a request for production of documents may be used to support or oppose a motion for summary judgment, but must be presented in admissible form. This means the evidence must be (1) properly identified and authenticated, (2) admissible under the secondary evidence rule, (3) nonhearsay or admissible under some exception to the hearsay rule, and (4) a complete record, not selected portions of the document. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) ¶¶ 10:168-to 10:169, pp. 10-70 to 10-71.) (rev. # 1, 2013).) Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400; see Evid. Code, §§ 1410 et seq. for methods of authenticating documents.)”
Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855.
Without any admissible evidence offered in support of the motion, defendant has failed to meet the initial burden on the motion, and the motion is denied.
Moreover, even if the court were to consider the discovery responses submitted, the Special Interrogatory responses include statements by plaintiffs such as, as set forth above, that plaintiffs do have documents supporting their allegation that the defendants were partners. [Ex. D, Response to UMF No. 20]. There are also interrogatory responses detailing the terms of the agreements entered into between plaintiffs and “Defendants,” and stating that such agreements were made through “both oral and written communications,” and that “Defendants’ affirmations of the terms of the agreements are set forth in numerous oral and written communications including e-mails and text messages.” [See Ex. D, Responses to Special Interrogatories Nos. 1 through 3].
The material submitted accordingly supports competing reasonable inferences with respect to whether plaintiffs will be able to establish the element of the breach of contract claims that there was a contract with the moving defendant, and whether plaintiffs will be able to establish that moving defendant is responsible under those agreements and with respect to the unjust enrichment and fraud causes of action as the partner of her daughter in Zelda Aberin & Associates, or otherwise.
CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718.
Under California Corporations Code § 16305(a):
“(a) A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership.”
Corporations Code § 16306(a) provides;
“(a) Except as otherwise provided in subdivisions (b) and (c), all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law.”
The inferences of the existence of a partnership accordingly imposes liability on the moving defendant. The moving papers fail to meet any conceivable initial burden and here, and the motion is denied.
The opposition points out that the initial burden is not satisfied here, based on a lack of admissible evidence, and objects on this ground, arguing that no declarations were submitted, there was no attempt to authenticate the documents attached to the moving papers, and defendant did not submit a request for judicial notice.
Plaintiffs rely on Serri v. Santa Clara University, as set forth above. Plaintiffs also rely on Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, in which the Second District found the trial court had not erred in granting summary judgment in favor of defendants where the trial court found the expert declaration offered in opposition to the motions stated no facts to support the expert’s opinions, and that his opinions were conclusory and speculative, so that there was insufficient admissible evidence offered by plaintiff to raise triable issues of material fact.
The Second District observed:
“The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion. (Code Civ. Proc., § 437c, subd. (d); DiCola v. White Brothers Performance Products, Inc. DiCola [affirming summary judgment where trial court properly sustained hearsay objections].) The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.”
Bozzi, at 761, italics in original.
Therefore, that plaintiffs’ objection based on the lack of admissible evidence is well founded, and the motion is denied on this ground.
To remedy this situation, defendant has submitted with the reply papers a Request for Judicial Notice, a Declaration of George Schwartz, Esq. purporting to authenticate Exhibits C, D, and E to the moving papers, the discovery responses, and a Declaration of Zayda Aberin, in which she states she was not a party to any agreements, and not in any way involved with Zelda in any business relationship. This is clearly new evidence offered with the reply, without good cause for the delay, and which was not filed and served on appropriate statutory notice.
It is held that new evidence may accompany a reply only in the exceptional case, and that the opposing party is entitled to notice and an opportunity to respond to the new material. Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362. In Plenger, although the court permitted the consideration of a supplemental physician’s declaration submitted with a reply, the court noted:
“Although, the inclusion of additional evidentiary matter with the
reply should only be allowed in the exceptional case the trial court's consideration of such additional evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material. (Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098 [251 Cal.Rptr. 727].) Here, plaintiffs did not object to the new evidence, did not request a continuance, and did not even suggest that additional evidence could be presented on the issue of whether warnings regarding the risk of death from an untreated pelvic infection should have been given to the physician. Similarly, plaintiffs do not claim on appeal that the trial court erred in allowing this new evidence.
Accordingly, it is permissible for both the trial court and this court to consider the additional evidence.”
Plenger, at 362, fn.8.
There are no extraordinary circumstances argued here, and no reason why this evidence could not have been submitted with the moving papers, as was defendant’s burden to do. The new material is simply submitted to the court without discussion, as if the court will perhaps not realize this material was not included with the moving papers. The reply makes brief reference to “minor procedural deficiencies” with the moving papers. [Reply 2:12]. The failure to support the motion with admissible evidence or judicially noticeable material is not minor. The new material submitted with the reply accordingly is not considered by the court.
In any case, even if the court were to consider the evidence submitted with the reply to retroactively authenticate and support the moving papers, as noted above, those moving papers include discovery responses raising competing inferences to defeat summary judgment.
In addition, the opposition submits evidence raising triable issues of fact with respect to whether moving defendant acted as partners with defendant Zelda Aberin, and is therefore responsible for the alleged causes of action under such a theory.
Plaintiffs rely on Greene v. Brooks (1965) 235 Cal.App.2d 161, in which the court of appeal affirmed the trial court’s judgment in an action for dissolution of a partnership, finding that the trial court had appropriately concluded from the parties' conduct and oral understandings that although a written partnership agreement had never materialized between them, the parties had nevertheless associated as partners in the operation of the subject business. The court of appeal set forth the test as follows:
‘The ultimate test of the existence of a partnership is the intention of the parties to carry on a definite business as coowners. Such intention may be determined from the terms of the parties' agreement or from the surrounding circumstances (Page v. Page, [18 Cal.Rptr. 897]; Haas v. Hodge, [340 P.2d 632]; Gardiner v. Gaither, [329 P.2d 22]; Wurm v. Metz, [327 P.2d 969]). A partnership need not be evidenced by writing (Calada Materials Co. v. Collins, [7 Cal.Rptr. 374]). It is immaterial that the parties do not designate the relationship as a partnership or realize that they are partners, for the intent may be implied from their acts (Constans v. Ross, [235 P.2d 113]; Singleton v. Fuller, [259 P.2d 687]). (4) Some degree of participation by partners in management and control of the business is one of the primary elements of partnership (Rosenberg v. Broy, [12 Cal.Rptr. 103]).”
Greene, at 161-162.
Plaintiffs here submit the declaration of plaintiff Adrineh Asatourian in which plaintiff states that plaintiffs initially met with Zayda Aberin when they observed her reviewing patient charts as a consultant at the office of another home health agency they were interested in purchasing, and that defendant informed them she was a consultant available for the specialized services of opening home health agencies and congregant care facilities, and stressed her experience and indicated she worked with her daughter, who had been working with her for years and was very knowledgeable. [Asatourian Decl., para. 5]. The declaration describes discussions concerning the consulting arrangements, contact with Zayda when Zelda was unavailable, and Zayda meeting in person to address issues, with Zayda afterward communicating regarding the status of filings in connection with the services promised. [Asatourian Decl. paras. 7, 8].
Plaintiffs also rely on deposition testimony of Zayda Aberin, in which she acknowledged text message exchanges in which she represented that she or her daughter Zelda would get back on matters, and that she would ask her daughter to provide certain information, that Zayda actively participated in representing to plaintiffs that services were being provided, and things moving forward and that her daughter was going to help her in connection with the services. [Madnick Decl. Ex. A, Asatourian Depo. pp. 74-77; Additional Facts Nos. 11, 14, and evidence cited]. There is also testimony concerning written communications, such as texts and emails showing that defendant Zayda Aberin was aware that the projects were not being completed, that a substantial sum of money had been paid, and that Zelda Aberin appeared to recognize that her mother was interacting with plaintiffs as if in charge. [Madnick Decl. Ex. A, Asatourian Depo. pp. 94-114; Additional Facts Nos. 21-27, and evidence cited]. Zayda Aberin also testified in deposition when asked if she expected to receive payment from plaintiffs for assisting them, defendant responded, “Of course there would be a fee for me to work.” [Madnick Decl. Ex. A, Asatourian Depo. p. 42: 6-11].
These facts constitute circumstances showing an intention by the parties to carry on the consulting business together and Zayda’s participation in and apparent control of the business, sufficient to support a reasonable inference that a partnership, or an ostensible partnership existed. Triable issues of fact remain, and the motion is denied.
CCP 437c(g): Material facts which do or do not create a triable issue of controversy:
Defendant Zayda Aberin’s Motion for Summary Judgment; or Alternatively, Summary Adjudication:
Motion for Summary Judgment is DENIED. Defendant has failed to submit admissible evidence, and has failed to request judicial notice of any matter to support the motion for summary judgment and meet defendant’s initial burden on the motion. See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761. To the extent the evidentiary showing is submitted in declarations filed with defendant’s reply papers, the court has not been requested to consider that untimely and improper additional evidence, and no good cause for doing so has been shown, when the material clearly could have been presented with moving papers, to permit plaintiffs the opportunity to respond.
Even if the court were to consider the material submitted with the motion, the court would nevertheless find that defendant had failed to meet the initial burden entitling defendant to relief, as the motion to establish plaintiffs’ inability to establish an element of their causes of action for breach of contract improperly relies on defendant’s own answer to establish facts in support of summary judgment, which is not proper. See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, n.7 (“It is generally understood, for instance, that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context.”) Defendant also relies on her own responses to discovery, which is also improper. To the extent defendant relies on plaintiffs’ responses to discovery, the responses referenced are confusingly in some cases not included with the exhibits, do not in some cases include the discovery request to evaluate the response, and, to the extent there is reliance on the fact that no documents were produced in response to certain discovery, there is no declaration indicating that the promised documents were not in fact produced, and this fact is not attested to even in the tardy declarations filed with the reply.
Moreover, the Special Interrogatory responses include critical statements by plaintiffs, including that plaintiffs do in fact have documents supporting their allegation that the defendants were partners. [Ex. D, Response to UMF No. 20]. There are also interrogatory responses detailing the terms of the agreements entered into between plaintiffs and “Defendants,” and stating that such agreements were made through “both oral and written communications,” and that “Defendants’ affirmations of the terms of the agreements are set forth in
numerous oral and written communications including e-mails and text messages.” [See Ex. D, Responses to Special Interrogatories Nos. 1 through 3]. The material submitted accordingly supports competing reasonable inferences with respect to whether plaintiffs will be able to establish the element of the breach of contract claims that there was a contract with the moving defendant, and whether plaintiffs will be able to establish that moving defendant is responsible under those agreements and with respect to the unjust enrichment and fraud causes of action as the partner of her daughter in Zelda Aberin & Associates, or otherwise.
In addition, even if the initial burden had been met on the motion, plaintiffs in opposition submit evidence which would support a reasonable inference that defendant Zayda Aberin is responsible for the conduct of Zelda Aberin & Associates, and her co-defendant Zelda Aberin on a theory that defendants were acting as partners or a partnership to provide the requested and promised services to plaintiffs. [Response to Unnumbered UMF, apparently No. 5, and evidence cited; Additional Facts Nos. 1-5, 8-27 and evidence cited]
Motion for Summary Adjudication is DENIED. The notice of motion fails to specify the issues and causes of action sought to be summarily adjudicated, as required under CRC Rule 3.1350(b) (“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 facts.”).
Even if the motion for summary adjudication were to be considered by the court, it would be denied for the reasons stated above, in effect, it is not supported by admissible evidence, competing inferences are raised by the material submitted even if the material were considered, and the opposition has raised triable issues of material fact with respect to the existence of a partnership relationship.
Plaintiffs’ Objections to and Motion to Strike Defendant Zayda Aberin’s Evidence in Support of Defendant’s Motion for Summary Judgment, or Alternatively, Summary Adjudication: Objections are SUSTAINED.
Plaintiffs’ Objection to Declaration of Zayda Aberin is SUSTAINED on the ground the Declaration was submitted with the Reply.
Plaintiffs’ Objection to Declaration of George Schartz is SUSTAINED on the ground the Declaration was submitted with the Reply.
Plaintiffs’ Objection to Request for Judicial Notice is SUSTAINED on the ground the Request was submitted with the Reply and on the ground unauthenticated discovery responses do not appear to be matter subject to judicial notice.
Objection to Plaintiffs’ Request for Judicial Notice in Support of Plaintiffs’ Opposition to MSJ/Summary Adjudication is SUSTAINED.
The court has not considered the unauthorized Sur-Reply filed by plaintiffs.
GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED, DEPARTMENT D WILL ALLOW APPEARANCES ONLY BY COURTCALL.
Please make such arrangements in advance if you wish to appear via CourtCall at (888) 882-6878 (or www.courtcall.com). Counsel and parties (including self-represented litigants) are not to personally appear, absent a compelling emergency reason. If none of the litigants on a matter set up a CourtCall appearance, then the Court will assume the parties are submitting on the tentative.