This case was last updated from Los Angeles County Superior Courts on 10/17/2020 at 14:58:28 (UTC).

LILY CHOU, AN INDIVIDUAL VS. VITUS F SUEN

Case Summary

On 01/30/2018 LILY CHOU, AN INDIVIDUAL filed a Contract - Other Contract lawsuit against VITUS F SUEN. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER and WILLIAM D. STEWART. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7716

  • Filing Date:

    01/30/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Glendale Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RALPH C. HOFER

WILLIAM D. STEWART

 

Party Details

Plaintiff and Cross Defendant

CHOU LILY

Cross Plaintiffs, Defendants and Cross Defendants

DEL MAR GARDENS LLC

DEL MAR GARDEN LLC

SUEN ANDREW AND INDIVIDUAL

SUEN PATRICK AN INDIVIDUAL

SUEN VIRGINIA

SUEN VITUS F.

SUEN JEFFREY AN INDIVIDUAL

CHOW YUK LING AN INDIVIDUAL

J.J. STEPHENS REAL ESTATE PROFESSIONALS

SUEN PATRICK

CHOW YUK

CHOW YUK LING

SUEN ANDREW

SUEN JEFFREY

ONG FRANK

SUEN ANDREW AN INDIVIDUAL

Defendants, Cross Plaintiffs and Cross Defendants

SUEN VIRGINIA

CHOU LILY

SUEN VITUS F.

HU STEPHEN

YU ANGELA

CHEN SHAU TANG

10 More Parties Available

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

DAVID FU AND ASSOCIATES

FU DAVID DAI-WUNG

HSU ROBERT

Cross Plaintiff and Defendant Attorneys

LAW OFFICES OF CHENG & ASSOCIATES

CHENG JACK GUAN-TING

CHENG & ASSOCIATES LAW OFFICES OF

 

Court Documents

Reply - REPLY TO OPPOSITION TO MOTION FOR ORDER PERMITTING PRETRIAL DISCOVERY OF DEFENDANTS' PROFITS AND FINANCIAL CONDITION

6/17/2020: Reply - REPLY TO OPPOSITION TO MOTION FOR ORDER PERMITTING PRETRIAL DISCOVERY OF DEFENDANTS' PROFITS AND FINANCIAL CONDITION

Declaration - DECLARATION OF JEFFREY SUEN RE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

6/10/2020: Declaration - DECLARATION OF JEFFREY SUEN RE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

Declaration - DECLARATION OF ANDREW SUEN RE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

6/10/2020: Declaration - DECLARATION OF ANDREW SUEN RE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

Objection - OBJECTION RE MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

6/10/2020: Objection - OBJECTION RE MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

Declaration - DECLARATION OF ANDREW SUEN RE OPPOSITION TO MOTION FOR FINANCIAL DISCOVERY OF DEFENDANTS

6/11/2020: Declaration - DECLARATION OF ANDREW SUEN RE OPPOSITION TO MOTION FOR FINANCIAL DISCOVERY OF DEFENDANTS

Declaration - DECLARATION OF YUK LING CHOW RE OPPOSITION TO MOTION FOR FINANCIAL DISCOVERY OF DEFENDANTS

6/11/2020: Declaration - DECLARATION OF YUK LING CHOW RE OPPOSITION TO MOTION FOR FINANCIAL DISCOVERY OF DEFENDANTS

Declaration - DECLARATION OF JACK CHENG RE OPPOSITION TO MOTION FOR FINANCIAL DISCOVERY OF DEFENDANTS

6/11/2020: Declaration - DECLARATION OF JACK CHENG RE OPPOSITION TO MOTION FOR FINANCIAL DISCOVERY OF DEFENDANTS

Notice - NOTICE MINUTE ORDER -NEW HRG DATES

4/27/2020: Notice - NOTICE MINUTE ORDER -NEW HRG DATES

Minute Order - MINUTE ORDER (COURT ORDER RE CONTINUANCE OF HEARING SET ON APRIL 17, 2020 T...)

3/25/2020: Minute Order - MINUTE ORDER (COURT ORDER RE CONTINUANCE OF HEARING SET ON APRIL 17, 2020 T...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE CONTINUANCE OF HEARING SET ON APRIL 17, 2020 T...) OF 03/25/2020

3/25/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE CONTINUANCE OF HEARING SET ON APRIL 17, 2020 T...) OF 03/25/2020

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE AND STATUS OF SERVICE AS TO DEFEND...)

4/25/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE AND STATUS OF SERVICE AS TO DEFEND...)

Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

2/16/2018: Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

2/16/2018: Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

2/16/2018: Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

Summons

5/9/2018: Summons

Legacy Document - LEGACY DOCUMENT TYPE: Miscellaneous-Other

6/15/2018: Legacy Document - LEGACY DOCUMENT TYPE: Miscellaneous-Other

Notice of Rejection Default/Clerk's Judgment

12/19/2018: Notice of Rejection Default/Clerk's Judgment

Declaration -

7/31/2018: Declaration -

116 More Documents Available

 

Docket Entries

  • 10/30/2020
  • Hearing10/30/2020 at 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 10/30/2020
  • Hearing10/30/2020 at 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Trial Setting Conference

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  • 10/30/2020
  • Hearing10/30/2020 at 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Hearing on Motion - Other Order Permitting Pretrial Discovery Regarding Defendants' Profits and Financial Condition Filed by Pltff Lilly Chou

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  • 10/01/2020
  • DocketObjection and Opposition to Response to Court's Tentative Ruling re: Plaintiff's Motion for Summary Judgment; Filed by Yuk Ling Chow (Defendant); DEL MAR GARDEN LLC (Defendant); Andrew Suen (Defendant) et al.

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  • 09/03/2020
  • DocketNotice (of Errata Re Deposition Transcript of Defendant Virginia Suen in Connection with Plaintiff's Motion for Summary Judgment); Filed by LILY CHOU (Plaintiff)

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  • 09/02/2020
  • DocketResponse (to Tentative Ruling); Filed by LILY CHOU (Plaintiff)

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  • 08/07/2020
  • Docketat 10:30 AM in Department A, William D. Stewart, Presiding; Hearing on Motion - Other (Order Permitting Pretrial Discovery Regarding Defendants' Profits and Financial Condition Filed by Pltff Lilly Chou) - Not Held - Continued - Court Congestion

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  • 08/07/2020
  • Docketat 10:30 AM in Department A, William D. Stewart, Presiding; Trial Setting Conference - Not Held - Continued - Court Congestion

    Read MoreRead Less
  • 08/07/2020
  • Docketat 10:30 AM in Department A, William D. Stewart, Presiding; Hearing on Motion for Summary Judgment (Filed by Plaintiff/Cross Deft Lily Chou) - Not Held - Continued - Court Congestion

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  • 08/06/2020
  • Docketat 3:16 PM in Department A, William D. Stewart, Presiding; Court Order

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172 More Docket Entries
  • 02/16/2018
  • DocketProof-Service/Summons; Filed by LILY CHOU (Plaintiff)

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  • 02/16/2018
  • DocketProof-Service/Summons; Filed by LILY CHOU (Plaintiff)

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  • 02/16/2018
  • DocketNOTICE OF UNAVAILABILITY OF COUNSEL FROM 04/13, 04/19-20, 05/07/06/01, 07/31-08/01, 10/16-26, AND 11/15- 27.; Filed by LILY CHOU (Plaintiff)

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  • 01/30/2018
  • DocketComplaint filed-Summons Issued

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  • 01/30/2018
  • DocketCivil Case Cover Sheet; Filed by LILY CHOU (Plaintiff)

    Read MoreRead Less
  • 01/30/2018
  • DocketNotice of Case Management Conference

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  • 01/30/2018
  • DocketNotice (of OSC)

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  • 01/30/2018
  • DocketSummons; Filed by null

    Read MoreRead Less
  • 01/30/2018
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 01/30/2018
  • DocketSummons Filed

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Tentative Rulings

Case Number: EC067716    Hearing Date: August 07, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use LACourtConnect, the court’s remote appearance technology (audio or video)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Chou v Suen

Motion for Summary Judgment;

Motion for Order Permitting Financial Discovery

Calendar:

09

Case No.:

EC067716

Hearing Date:

August 7, 2020

Action Filed:

January 30, 2018

Trial Date:

Not Set

Motion for Summary Judgment

MP:

Plaintiff Lily Chou

RP:

Defendants Vitus F. Suen; Virginia Suen; Patrick Suen; Jeffrey Suen; Andrew Suen; Yuk Ling Chow; Del Mar Gardens LLC

Motion for Order Permitting Financial Discovery

MP:

Plaintiff Lily Chou

RP:

Defendants Vitus F. Suen; Virginia Suen; Patrick Suen; Jeffrey Suen; Andrew Suen; Yuk Ling Chow; Del Mar Gardens LLC

ALLEGATIONS:

The instant action arises from an alleged investment agreement by Plaintiff Lily Chou (“Plaintiff”) with Defendants Vitus F. Suen ("Vitus"), Virginia Suen ("Virginia"), Patrick Suen ("Patrick"), Andrew Suen ("Andrew"), Jeffrey Suen ("Jeffrey"), Yuk Ling Chow ("Yuk"), and the resulting business Del Mar Gardens, LLC (“DMG”) and collectively the “Defendants”) for the purchase and management of real properties 8356, 8360, 8362, and 8364 Sheffield Road, San Gabriel, CA (the “Properties”). Plaintiff alleges that under the operating agreement, the members were required to make initial capital contributions, where Plaintiff made a $112,500 contribution and held a 12.5% interest in Del Mar. Plaintiff alleges that they bought the Properties and then resold it, but that she was given less than 12.5% of the net sale proceeds.

The original Complaint was filed on January 30, 2018, and the First Amended Complaint (“FAC”) was filed May 09, 2018, alleging causes of action sounding in (1) Breach of Fiduciary Duty; (2) Constructive Fraud; (3) Breach of Contract; (4) Negligence; (5) Tortious Interference with Contract; (6) Defamation; and (7) Accounting.

On June 15, 2018, Cross-Complainants Vitus F. Suen, Virginia Suen, Patrick Suen, Andrew Suen, Jeffrey Suen, Yuk Ling Chow, and Del Mar filed a Cross-Complaint (“XC”) against Cross-Defendants Lily Chou, Angela Yu, Stephen Hu (individually and d/b/a J.J. Stephens Real Estate Professionals), and Shau Tang Chen (the “Cross-Defendants”). The XC alleged causes of action sounding in (1) Breach of Written Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4) Fraud; (5) Breach of Oral Contract; (6) Constructive Fraud; (7) Breach of Fiduciary Duty; (8) Constructive Fraud; (9) Conspiracy; and (10) Declaratory Relief. Following a demurrer, where the court overruled the pleading on the First, Third, Fourth, Fifth, Sixth, Ninth and Tenth Causes of Action, and sustained on the Second Cause of Action, Cross-Complainants did not file an amended XC.

PRESENTATION:

Plaintiff filed her motion for summary judgment on November 22, 2019, with the original hearing date set for April 17, 2020. On March 25, 2020, in response to the COVID-19 pandemic and pursuant to the March 17, 2020, Administrative Order of the Presiding Judge, the Court continued the instant motion to May 22, 2020. Counsel for Plaintiff was informed telephonically and directed to give notice.

Plaintiff filed her motion for pretrial discovery of Defendants’ financial condition on April 14, 2020.

On April 22, 2020, and in response to the continuing pandemic conditions, the Court continued the instant matters to June 24, 2020. Counsel for Plaintiff was informed and directed to give notice, and a copy of the minute order was mailed to counsel.

On June 23, 2020, the Court continued the matters again to August 7, 2020. Counsel for Plaintiff was telephonically notified, and a copy of the minute order was mailed to counsel.

RELIEF REQUESTED:

Plaintiff moves for summary judgment, or in the alternative, adjudication, as to the FAC on the First, Second, Third, Fourth, and Seventh Causes of Action. Additionally, Plaintiff moves for summary judgment, or in the alternative, adjudication, as to the XC, for the First, Third, Fourth, Fifth, Sixth, Ninth, and Tenth Causes of Action.

Plaintiff also moves for leave to discover all Defendants’ financial conditions prior to the trial.

DISCUSSION:

Motion for Summary Judgment – FAC

Standard of Review – MSJ Plaintiff

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., §437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Id.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., §437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

  1. First Cause of Action – Breach of Fiduciary Duty

    The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.

    Plaintiff fails to establish its prima facie right to relief for breach of fiduciary duty. The existence of a fiduciary duty between Plaintiff and Defendants is not disputed by either party. (Response to SSUMF, ¶ 48; Decl. Chou, ¶¶ 11-16.) Plaintiff establishes that Defendants breached their fiduciary duty when they (1) failed to inform Plaintiff of the sale of the Property until it was already in escrow (Decl. Chou, ¶ 21); (2) misrepresented to Plaintiff that she would receive her claimed profit share from the sale if she signed the escrow documents and subsequently stopped payment on the issued check (Decl. Chou, ¶¶ 27-28; Exhibit 15); (3) refused to pay Plaintiff her claimed share (Decl. Chou, ¶ 29); and (4) and refused to provide an accounting despite Plaintiff's request to do so. Plaintiff alleges damages in excess of $120,323.41 but does not specifically detail and establish how these damages were calculated. (Decl. Chou, ¶¶ 29.) Plaintiff contends she is owed $221,249.54 in profit share from the Property Sale and allegedly received a payment of $100,578, which suggests a difference of $120,671.54, but this calculation is presented by Plaintiff. (Exhibit 14.)

Even if Plaintiff established its prima facie case, Defendants dispute all four allegations of breach, creating triable and material issues on each allegation. Defendants contend (1) Yuk first notified Chou about the pending property sale in November 2017 before the sale closed. (Decl. Chou, ¶ 9.) Defendants also contend (2) Virginia initiated a stop payment for Plaintiff's check on December 13, 2017 because she needed additional time to determine who paid contribution toward Del Mar Gardens, LLC after discovering an alleged unauthorized commission payment to broker J.J. Stephens on December 12, 2017. (MSJ Oppo., p. 11, lines 16-23.) Defendants further contend (3) Plaintiff failed to make her full monetary contribution. (MSJ Oppo., p. 5, lines 1-2.) Defendants further dispute that (4) there has been a disputed accounting request. (MSJ Oppo., p. 14, lines 21-22.)

Accordingly, Plaintiff has not met its burden to establish each element of its breach of fiduciary duty claim. The Court will deny summary judgment for the first cause of action.

II. Second Cause of Action – Constructive Fraud

"Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; ¿or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud." (Civ. Code, § 1573.) “Constructive fraud ‘arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.’ [Citation.] Actual reliance and causation of injury must be shown. [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131) (quoting Tyler v. Chidlren's Home Society (1994) 29 Cal.App.4th 511, 548.) The elements of constructive fraud are "(1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation)." (Id.)

Plaintiff fails to establish a prima facie right to relief for constructive fraud. As stated above, (1) the existence of a fiduciary duty between Plaintiff and Defendants is not disputed by either party. (Response to SSUMF, ¶ 48; Decl. Chou, ¶¶ 11-16.) Plaintiff also establishes that (2) Defendants failed to inform Plaintiff of the sale of the Property until it was already in escrow (Decl. Chou, ¶ 21) but fails to (3) establish facts supporting Defendants' intent to deceive. Plaintiff does allege that Defendants falsely claimed an oral settlement is reached in an effort to settle the dispute, but does not contend this allegedly false claim was intended to deceive Plaintiff. (MSJ, p. 13, lines 5-7.)

Accordingly, Plaintiff has not met its burden to establish each element of its constructive fraud claim. The Court will deny summary judgment for the second cause of action.

III. Third Cause of Action – Breach of Contract

To plead breach of contract, the Plaintiff must allege (1) the existence of a contract, (2) Plaintiff’s performance or excuse for non-performance, (3) Defendant’s breach, and (4) resulting damage to Plaintiff. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.) Contracts may be written or oral, except when specified by law such as contracts falling under the statute of frauds. Civ. Code §§1622 & 1624.

Plaintiff establishes a prima facie right to relief for breach of contract by establishing that (1) a contract between Plaintiff and Defendants existed (Decl. Chou, ¶ 13), (2) Plaintiff fully performed her obligation by paying $100,000 to DMG (Id.), (3) Defendants failed to disperse Plaintiff's claimed profit share (Id. at ¶¶ 28-29), and (4) Plaintiff suffered damages through this conduct (Ibid.)

Defendants dispute that (2) Plaintiff performed its obligation, raising a triable and material issue on this claim. Defendants allege that Plaintiff did not contribute the full $100,000 obligated under their agreement. (Decl. Virginia, ¶ 3.)

Accordingly, Defendants have met their burden to show a triable issue of material fact exists. The Court will deny summary judgment for the third cause of action.

IV. Fourth Cause of Action – Negligence

A complaint for damages for negligent injury to person or property must allege: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.

Plaintiff fails to establish a prima facie right to relief for negligence. Plaintiff alleges that "Defendants, as members of DMG, owed Plaintiff a duty of care with respect to her pro-rata share of the Property sale proceeds" but fails to establish facts supporting this allegation. The citation for this allegation points to paragraph 58 of the SSUMF, which only numbers up to paragraph 57 and does not contain a paragraph 58.

Accordingly, Plaintiff has not met its burden to establish each element of its negligence claim. The Court will deny summary judgment for the fourth cause of action.

V. Seventh Cause of Action – Accounting

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” Id.

Plaintiff fails to establish a prima facie right to relief for accounting. Plaintiff fails to establish facts supporting that "some balance is due the plaintiff that can only be ascertained by an accounting." (Teselle v. McLoughlin, supra, 173 Cal.App.4th at 179.)

Accordingly, Plaintiff has not met its burden to establish each element of its accounting claim. The Court will deny summary judgment for the seventh cause of action.

Motion for Summary Judgment - XC

Standard of Review – MSJ Cross-Defendant

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., §437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-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 or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Id.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., §437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

  1. Statute of Limitations Affirmative Defense

    The statute of limitations concerning fraudulent conduct, breach of contract, and breach of the covenant of good faith and fair dealing is four years each. (Code Civ. Proc., §§ 338, subd. (d), 337; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 220.) The statute of limitations for breach of fiduciary duty is three years where arising from fraud, and up to four years otherwise. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.) The general rule in California is that a “statute of limitations begins to run when a cause of action accrues, even though the plaintiff is ignorant of the cause of action or of the identity of the wrongdoer.” (Community Cause v. Boatwright (1981) 124 Cal. App. 3d 888, 898.) Traditionally at common law, a “cause of action accrues ‘when [it] is complete with all of its elements’—those elements being wrongdoing, harm, and causation.” Pooshs, at p. 797, (quoting Norgart, at p. 397). This is the “last element” accrual rule: ordinarily, the statute of limitations runs from “the occurrence of the last element essential to the cause of action.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal. 3d 176, 187; accord, Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal. 4th 809, 815; Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal. 4th 520, 531, fn. 4.)

    “Under the ‘delayed discovery rule,’ . . . the accrual date of a cause of action is delayed until the plaintiff is aware of his or her injury and its cause. The plaintiff is charged with this awareness as of the date he or she suspects or should suspect that the injury was caused by someone’s wrongful act. The period of limitations, therefore, will begin to run when the plaintiff has a ‘suspicion of wrongdoing’; in other words, when he or she has notice of information of circumstances to put a reasonable person on inquiry.” (Brandon G. v. Gray (2003) 111 Cal. App. 4th 29, 35.)

    Plaintiff (here, "Cross-Defendant") has met its burden to establish an affirmative defense to each of Defendants' (here, "Cross-Complainants") claims through the statute of limitations by establishing that Cross-Complainants either suspected or were put on inquiry notice as to the wrongdoing alleged in their claim in either 2004 or 2006. Cross-Defendant establishes that: (1) Cross-Complainants received a copy of the closing statement, purchase agreement, and commission agreement with J. J. Stephens, and so were aware of all documentation regarding the DMG transaction in 2004 (Decl. Chou, ¶ 16); and (2) Virginia began managing the accounts of DMG in 2006, thus putting Cross-Complainants on notice of any financial irregularities from that date (Decl. Chou, ¶ 31). Cross-Defendant additionally alleges that Andrew Suen and Frank Ong were aware of the amount of the loan taken out, but cites the Declaration of Chou, paragraph 13, which does not support the allegation presented. Cross-Defendant contends that the statute of limitations for all actions in the XC are barred whether inquiry notice began in 2004 or 2006, as the applicable statute of limitations range from three to four years and the XC was filed in 2018. Thus, the burden shifts to Cross-Complainants to show a triable issue of material fact exists as to the statute of limitations defense.

    Cross-Complainants set forth that Virginia discovered Cross-Defendant's alleged wrongdoing in December of 2017 through documents discovered in the instant suit. (Decl. Virginia, ¶ 3.) They argue Virginia, acting as a reasonable investor, would only review title documents, the Property Profile, and purchase history on the property at the time of sale. They contend Virginia only discovered the alleged fraud underlying the XC on review of the Property Profile in preparation for sale on November of 2017. (Decl. Virginia, ¶ 27.)

    Accordingly, Cross-Complainants have met their burden in demonstrating the existence of a material, triable issue as to the statute of limitations affirmative defense.

  2. First and Fifth Causes of Action – Breach of Written and Oral Contract

    To plead breach of contract, the Plaintiff must allege (1) the existence of a contract, (2) Plaintiff’s performance or excuse for non-performance, (3) Defendant’s breach, and (4) resulting damage to Plaintiff. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.) As for the first element, alleging the existence of a contract has its own additional pleading and proof requirements, or elements. These are (1) parties capable of contracting, (2) their consent, (3) a lawful object, and (4) sufficient cause or consideration. Civ. Code §1550; O'Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal. App. 4th 797, 806-807. Contracts may be written or oral, except when specified by law, such as contracts falling under the statute of frauds. Civ. Code §§ 1622 & 1624.

    Cross-Defendant argues that no breach of contract occurred because no contract was formed at the time of breach, and Cross-Complainants suffered no damages. Cross-Defendant also argues modifications to the operating agreement must in in writing to be enforceable. Cross-Defendant cites Exhibits 5, 7, 8, and 17, which are not attached to the instant motion, in support of these arguments. The Court is given no citation to locate the exhibits, cannot locate the exhibits, and will thus deny summary adjudicstion as to the first and fifth causes of action.

  3. Third Cause of Action – Breach of Fiduciary Duty

    The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. (Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.)

    Cross-Defendant argues she had no fiduciary duty to Cross-Complainants at the time of the alleged breach, as the parties' only relationship then were as investors, citing paragraphs 3-13 of the Declaration of Chou. This argument does not address Cross-Complainants' allegations that Cross-Defendant received kickbacks from an undisclosed commission relating to DMG's purchase of real property and channeled DMG monies to Angie Yu, both allegedly occurring after the formation of DMG. (XC, ¶ 31.)

    Accordingly, the Court will deny summary judgment as to the third cause of action.

  4. Fourth and Sixth Causes of Action – Fraud/Constructive Fraud

    Causes of action for ‘fraud’ ‘concealment’ and ‘intentional misrepresentation’ are all causes of action sounding in “deceit based on intentional misrepresentation.” (Manderville v. PCG&S Group (2007) 146 Cal. App. 4th 1486, 1498, fn. 4.) As such, “[t]o establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” Id. at 1498. Fraud must also be specifically pled, which means that the allegations in such an action need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331; see also Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47) (Specific to fraud is the rule of particularity in pleading; fraud is the only remaining cause of action in which specific pleading is required to enable the court to determine, on the basis of the pleadings alone, whether a foundation exists for the cause.).

    The Civil Code specifies several different varieties of fraud, including “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” (Civ. Code §1710.) “The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (internal quotes omitted); see also Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1185–1186, as modified on denial of reh'g (Aug. 13, 2014), review denied (Nov. 25, 2014)) (“the necessary elements of a concealment/suppression claim consist of (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.”).

    Cross-Defendant argues Cross-Complainants cannot show that it failed to make its required capital contribution or damaged Cross-Complainants. Cross-Defendant cites to Exhibits 3, 8, 28, and 18 in support of these arguments. Exhibits 3, 8, and 18 are not attached to the instant motion. Exhibit 28 is cited only to support the argument that Cross-Complainants invested significant funds into forming and operating DMG. The Court is given no citation to locate the remaining exhibits and cannot locate the exhibits, and will thus deny summary motion as to the fourth and sixth causes of action.

  5. Ninth Cause of Action – Conspiracy

    In order to establish liability for an act based on a civil conspiracy theory a plaintiff must plead that the alleged conspirators (1) formed and operated a conspiracy to harm plaintiff, (2) committed a specific wrongful act or acts done pursuant to the conspiracy, and (3) plaintiff suffered damage resulting from such act or acts. See Bartley v. California Association of Realtors (1980) 115 Cal.App.3d 930, 934.

    While the Court notes that a “conspiracy ‘may be inferred from the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances,’” there need to be some allegations that the co-conspirers had an agreement, and acted with scienter in taking the acts that furthered the conspiracy. Bartley, supra, 115 Cal.App.3d at 934; and Schick v. Lerner (1987) 193 Cal. App. 3d 1321, 1328 (“In order to maintain an action against [defendant] on a theory of vicarious liability arising out of his joining an already formed conspiracy, the alleged facts must show either expressly or by reasonable inference that he had knowledge of the object and purpose of the conspiracy, that there was an agreement to injure the plaintiff, that there was a meeting of the minds on the objective and course of action, and that as a result one of the defendants committed an act that resulted in the injury.”).

    Cross-Defendant argues Cross-Complainants fail to create a triable issue of fact as the elements of conspiracy because they do not provide evidence showing Cross-Defendant failed to make her capital contribution, received and concealed a kickback from DMG's property purchase, or entered into a conspiracy with anyone. Cross-Defendant cites to the Deposition of Yuk Ling Chow, Exhibit 33, and Exhibit 19 to support these arguments, but the exhibits in question are not attached to the instant motion. The Court is given no citation to locate the exhibits, cannot locate the exhibits, and will thus deny summary motion as to the ninth causes of action.

  6. Tenth Cause of Action – Declaratory Relief

    An action for declaratory relief the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that the rights and duties be adjudged. City Of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal. App. 3d 160, 170; see Code of Civ. Proc. §1060 (identifying the remedy of declaratory relief). If these requirements are met, the Court must declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration. Declaratory relief is a broad remedy, and the rule that a complaint is to be liberally construed is particularly applicable to one for declaratory relief. The object of declaratory relief "is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues." (See Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324) (quoting General of America Ins. Co. v. Lilly (1968) 258 Cal. App. 2d 465, 470.)

    Cross-Defendant argues declaratory relief is improper as the issues invoked are also invoked in other causes of action. On review of the XC, the tenth cause of action makes no new allegations, and Cross-Complainants do not dispute this argument.

    Accordingly, the Court will grant summary judgment as to the tenth cause of action of the cross-complaint.

    ---

    Motion for Order Permitting Financial Discovery

    Standard of Review

     

    Civ. Code §3295 protects parties from having to reveal financial information to others unless and until the plaintiff “established that there is a substantial probability that the plaintiff will prevail on the claim.” Civ. Code §3295(c). “In this context, we interpret the words ‘substantial probability’ to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests. We note that the Legislature did not use the term ‘reasonable probability’ or simply ‘probability,’ which would imply a lower threshold of ‘more likely than not.’” Jabro v. Superior Court (2002) 95 Cal. App. 4th 754, 758. Moreover, the code “allows the trial court, ‘at any time,’ to enter an order permitting the discovery of a defendant's profits and/or financial condition… [s]o long as the trial court allows the defendant sufficient time, following a determination of liability, to collect his or her financial records for presentation on the issue of the amount of such damages to be awarded, there is nothing prejudicial or unfair about using such a process to try the issue of the amount of punitive damages.” Mike Davidov Co. v. Issod (2000) 78 Cal. App. 4th 597, 609.

    Discussion

    On review of the evidence and arguments made on motion, the Court concludes that Plaintiff has failed to establish a prima facie of success basis for her punitive damages claim. Plaintiff's discussions on a laches affirmative defense and contention that Defendants violated a fiduciary duty toward Plaintiff are insufficient to support "a strong likelihood" that Defendants acted willfully and maliciously at this time. Other issues where Defendants have presented competing declaration and testimony include (1) precise accounting figures for the property purchase, the capital contribution of each investor, and the loan amount taken out by DMG, as each of these figures are disputed between the parties, while Defendants' opposition brief presents even a range of figures in their own accounting; (2) what amount of capital contribution Plaintiff contributed, if any; (3) when exactly Virginia could reasonably access the documents required to put her on notice of what Defendants allege to be Plaintiff's failure to contribute; (4) whether Defendants acted willfully, maliciously, or fraudulently when Virginia Chen placed the stop payment on Plaintiff's check; (5) the purchase price of the Property itself and the financing amount required to purchase the Property; and (6) whether an oral agreement existed between Virginia and Plaintiff for Plaintiff to accept a reduced payment in lieu of her original claimed profit share.

    Furthermore, the Court notes that even if it were to consider Plaintiff’s argument sufficient to establish "a strong likelihood" of success, Civ. Code § 3295(c) is not a mandatory provision that obligates the Court to grant the relief requested, but a discretionary provision. As such, the Court considers that the discovery of the financial condition of Defendants should be set after a determination of liability is reached by the factfinder.

    Accordingly, the Court will deny the motion.

    ---

RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Lily Chou’s Motion for Summary Judgment or Adjudication, and Motion for Leave to Discover Defendants’ Financial Condition came on regularly for hearing on August 7, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT AS TO THE COMPLAINT IS DENIED

THE MOTION FOR SUMMARY ADJUDICATION AS TO THE CROSS-COMPLAINT IS DENIED AS TO THE FIRST, THIRD, FOURTH, FIFTH, SIXTH, AND NINTH CAUSES OF ACTION; THE MOTION IS GRANTED AS TO THE TENTH CAUSE OF ACTION.

THE MOTION FOR LEAVE TO DISCOVER DEFENDANTS' FINANCIAL CONDITION IS DENIED

DATE: _______________ _______________________________

JUDGE

Case Number: EC067716    Hearing Date: July 01, 2020    Dept: A

The Superior Court is re-opening under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology such as Court Call or LACourtConnect )(when it becomes available on August 6 for Branch Civil)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

White v Holmes

MOTION FOR SUMMARY JUDGMENT

Calendar:

07

Case No.:

EC067716

Hearing Date:

July 1, 2020

Action Filed:

January 30, 2018

Trial Date:

Not Set

MP: Defendant Lee Ann Holmes

RP: Plaintiff Helen Dorroh White

ALLEGATIONS:

In this action, Helen Dorroh White ("Plaintiff) alleges that Bruce W.S. Holmes D.C. ("Dr. Holmes"), Holmes Chiropractic Clinic ("Clinic"), Lee Ann Holmes ("Mrs. Holmes"), Daniel Alan Woodward, D.C. ("Dr. Woodward"), and Molly Elizabeth Casey, D.C ("Dr. Casey"). (together, "Defendants") undertook the care of Plaintiff and performed unnecessary and excessive chiropractic services. The original complaint was filed on June 5, 2017 and the first amended complaint was filed on June 1, 2018. The second amended complaint (“SAC”), filed October 10, 2018, alleges causes of action for:

(1) Professional negligence against each of: (a) Bruce W.S. Holmes, D.C. and Holmes Chiropractic; (b) Daniel Alan Woodard, D.C.; and (c) Molly Elizabeth Casey, D.C.

(2) Battery against Molly Elizabeth Casey, D.C.;

(3) [Omitted]

(4) Fraud for unnecessary chiropractic care against Bruce W.S. Holmes, D.C.;

(5) Fraud for “Collection-Attorney Fees” against Bruce W.S. Holmes, D.C.;

(6) Breach of contract against Bruce W.S. Holmes, D.C.;

(7) General Negligence against Lee Ann Holmes; and

(8) Conversion against each of: (a) Lee Ann Holmes and (b) Bruce W.S. Holmes, D.C.

On November 27, 2018, the parties stipulated to strike all punitive damages from the SAC. The stipulation provides that Plaintiff may still seek punitive damages upon the Court’s order allowing such a filing of an amended pleading claiming punitive damages.

PRESENTATION:

Mrs. Holmes filed the motion for summary judgment on February 7, 2020. Opposition was filed on May 8, 2020, and a reply was filed on June 26, 2020. The original hearing date for the instant motion was on April 24, 2020. (The court refers to the moving party Lee Ann Holmes by the term “Mrs.” not out of any disrespect, but because the “Mrs.” was used in the moving papers.)

On April 1, in response to the COVID-19 pandemic and pursuant to the March 17, 2020, Administrative Order of the Presiding Judge, the Court continued the instant motion to May 29, 2020. Counsel for Plaintiff was informed telephonically and directed to give notice.

On April 28, 2020, and in response to the continuing pandemic conditions, the Court continued the matter again, setting the motion for hearing on July 1, 2020. Counsel for Plaintiff was informed and directed to give notice, and a copy of the minute order was mailed to counsel.

REQUESTED RELIEF:

Mrs. Holmes moves for summary judgment, or in the alternative, summary adjudication on the basis that there are no issues of material fact with respect to the Seventh Cause of Action sounding in General Negligence and the Eighth Cause of Action sounding in Conversion.

DISCUSSION:

Plaintiff's only two causes of action alleged against Mrs. Holmes in the SAC is the Seventh Cause of Action sounding in Negligence and the Eighth Cause of Action sounding in Conversion.

Standard of Review

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., §437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-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 or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Id.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., §437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

Merits

  1. Negligence

A complaint for damages for negligent injury to person or property must allege: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. (Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.) No strict requirements exist for the form of such allegations. (Id.)

Mrs. Holmes contends she is entitled to summary judgment on the negligence claim because the undisputed facts establish that she did not owe a duty to Plaintiff, and that she did not cause any damages to Plaintiff.

Mrs. Holmes contends that the primary basis for Plaintiff's claims against her is that she was an agent, servant, and employee of Dr. Holmes and failed to comply with the Contract and segregate White's insurance check portion. (MSJ, 4:10-14.) She argues that she is not employed by Dr. Holmes, not a party to the Contract, and thus does not owe a duty toward Plaintiff. (MSJ, 5:1-4.) The Court notes that Mrs. Holmes cites to Separate Statement 5 to support this argument, which in turn cites to the Declaration of Mrs. Holmes, Declaration of Dr. Holmes, and Declaration of Mr. Macias. The Court cannot locate the Declaration of Mrs. Holmes or the Declaration of Dr. Holmes within the Court's electronic document system and finds that the Declaration of Mr. Macias does not speak to Mrs. Holmes' employment or the lack thereof. Plaintiff contends that Mrs. Holmes was employed by Dr. Holmes and was a party to the contract, arguing that Dr. Holmes told Plaintiff that his wife, Mrs. Holmes, was the administrator of the clinic and "handled all of the Business". (Opposition, 1B; Decl. White, ¶ 7.) Defendant argues that this statement by Dr. Holmes to Plaintiff is hearsay. (Reply, 1:18.)

Mrs. Holmes additionally argues that Plaintiff does not contend that Mrs. Holmes obtained the insurance funds, and that furthermore the damages are contractual damages based upon a billing dispute between Plaintiff and Holmes Chiropractic Clinic. (MSJ, 7:17-21.) She argues that Plaintiff's sole basis for asserting damages for this claim is under a Contract between Plaintiff and the Holmes Chiropractic Clinic, arguing that negligent breach of contract does not give rise to tort damages. Mrs. Holmes further argues that there is no evidence she was the proximate cause of the damages Plaintiff alleges she sustained. (MSJ, 8:2-7.) Plaintiff argues that Mrs. Holmes' negligence enabled Dr. Holmes to embezzle money out of Plaintiff's insurance checks, causing her to lose $50,000. (Opposition, 1B.) The Court finds that Plaintiff fails to show evidence establishing that she was entitled to this $50,000. Plaintiff has thus failed to show a triable issue exists as to the damages element of the negligence claim.

Accordingly, the Court will grant Mrs. Holmes' motion for summary judgment for the negligence claim.

  1. Conversion

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are (1) plaintiff's ownership or right to possession of the property at the time of the conversion, (2) defendant's conversion by a wrongful act or disposition of property rights, and (3) damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. Money can be the subject of an action for conversion if a specific sum capable of identification is involved. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 451-452.)

Mrs. Holmes argues she is entitled to summary judgment on the conversion claim because (1) Plaintiff did not have any right to possess excess insurance payments and thus did not suffer damages (6:13-15); and because (2) Mrs. Holmes did not convert the excess insurance payments and Plaintiff did not suffer any damages as a result (6:21-22; 8:1-2). As stated above, Plaintiff fails to show evidence establishing that she is entitled to the $50,000 that she claims as damages. Plaintiff has thus also failed to show a triable issue exists as to the damages element.

Accordingly, the Court will grant Mrs. Holmes' motion for summary judgment for the conversion claim.

  1. Conclusion

The Court will grant Mrs. Holmes' motion for summary judgment in its entirety.

RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Mrs. Holmes' Motion for Summary Judgment came on regularly for hearing on July 1, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT IS GRANTED

DATE: _______________ _______________________________

JUDGE