On 04/03/2018 RAFAEL G CUNANAN filed a Property - Other Real Property lawsuit against JOSE G NIETO JR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA A. MEIERS, JAMES C. CHALFANT, ERNEST HIROSHIGE, ERNEST M. HIROSHIGE and RAFAEL A. ONGKEKO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BARBARA A. MEIERS
JAMES C. CHALFANT
ERNEST M. HIROSHIGE
RAFAEL A. ONGKEKO
CUNANAN RAFAEL G.
NIETO JOSE G.M. JR TRUSTEE OF THE JOSE
JP MORGAN CHASE BANK N.A.
NIETO JOSE G. JR
DOES 1 TO 100
NIETO JOSEFINA C. TRUSTEE OF THE JOSE
BATES JAMES W. ESQ.
BATES JAMES WILLIAM ESQ.
Attorney at Law Ofc James W Bates
1055 E. Colorado Blvd., 5Th Floor
Pasadena, CA 91106-2327
MCCALLA RAYMER LEIBERT PIERCE LLP
GONZALES MICHAEL R
12/9/2019: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion
12/9/2019: Motion to Deem RFA's Admitted
12/16/2019: Motion for Summary Judgment
1/6/2020: Opposition - OPPOSITION BY DEFENDANT TO MOTION TO DEEM ADMISSIONS ADMITTED: TO COMPEL RESPONSES TO DISCOVERY
1/7/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO DEEM REQUEST FOR ADMISSIONS ADMITTED AND...) OF 01/07/2020
6/17/2019: Notice of Ruling
7/3/2019: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)
7/15/2019: Notice - NOTICE STATEMENT OF NOT RESPONSE TO [PROPOSED] ORDER GRANTING MOTION TO SET ASIDE DEFAULT OR DEFAULT JUDGMENT
8/8/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ORDER GRANTING MOTION TO SET ASIDE DEFAULT O...) OF 08/08/2019
11/19/2018: Request for Entry of Default / Judgment
11/20/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Appearance Case Review) of 11/20/2018
10/4/2018: Proof of Personal Service
10/4/2018: Proof of Personal Service
8/7/2018: Minute Order -
7/27/2018: Minute Order -
7/27/2018: CASE MANAGEMENT STATEMENT -
7/5/2018: PROOF OF SERVICE OF SUMMONS ON FIRST AMENDED COMPLAINT (JOSEFINA C. NIETO, TRUSTEE)
5/14/2018: PROOF OF SERVICE SUMMONS -
Hearing05/04/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing04/20/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing02/27/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary JudgmentRead MoreRead Less
Hearing02/27/2020 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: 1st Appearance Fees of DefendantsRead MoreRead Less
Docketat 08:30 AM in Department 73; Order to Show Cause Re: (1st Appearance Fees of Defendants) - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: 1st Appearance Fees of Defendants)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ([Minute Order (Order to Show Cause Re: 1st Appearance Fees of Defendants)]); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 73; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Docketat 08:30 AM in Department 73; Hearing on Motion to Deem Request for Admissions Admitted (and Imposing Monetary Sanctions in the Amount of $2,460.00 (Res ID3960)) - HeldRead MoreRead Less
DocketCertificate of Mailing for ((Hearing on Motion to Deem Request for Admissions Admitted and...) of 01/07/2020); Filed by ClerkRead MoreRead Less
Docketat 00:00 AM in Department 12; (Affidavit of Prejudice; Transferred to different departmnt) -Read MoreRead Less
DocketMinute order entered: 2018-04-10 00:00:00; Filed by ClerkRead MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketNOTICE OF PENDENCY OF ACTIONRead MoreRead Less
DocketNotice; Filed by Rafael G. Cunanan (Plaintiff); Socorro Cunanan (Plaintiff)Read MoreRead Less
DocketCONFORD COPY OF RECORDED NOTICE OF PENDENCY OF ACTIONRead MoreRead Less
DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Rafael G. Cunanan (Plaintiff); Socorro Cunanan (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Rafael G. Cunanan (Plaintiff); Socorro Cunanan (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGESRead MoreRead Less
Case Number: BC700813 Hearing Date: February 27, 2020 Dept: 73
Rafael Ongkeko, Judge presiding
RAFAEL G. CUNANAN, ET AL. V. JOSE G. NIETO, JR., ET AL. (BC700813)
Counsel for plaintiffs/moving parties: James Bates
Counsel for defendant/opposing party Jose G.M. Nieto, Jr., individually and as Jose G.M. Nieto, Jr. Trustee of The Nieto Family Trust: Joseph Trenk
(no opposition by other defendants)
MOTION FOR SUMMARY JUDGMENT/ADJUDICATION (filed 12/16/19)
Plaintiffs Rafael G. Cunanan and Socorro Cunanan’s motion for summary judgment/adjudication is DENIED.
Plaintiffs Rafael G. Cunanan (“Rafael”) and Socorro Cunanan (“Socorro”) (collectively “Plaintiffs”) move for summary judgment on the first amended complaint or, in the alternative, summary adjudication of the 1st – 8th causes of action in the first amended complaint.
There may be a notice issue with both moving and opposition papers, but neither party has asserted any objection. Defendant Jose Nieto’s opposition evidence is not in the proper format. Nieto’s opposition is not supported by a memorandum of points and authorities, in violation of CRC 3.1350(e)(1). Further, Jose’s opposing separate statement does not comply with C.C.P. §437c(b)(3) and CRC 3.1350(f). The court excuses Nieto’s non-compliance and elects to decide the motion on its merits. Moving parties have not filed a reply.
“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code of Civ. Proc., § 437c(c).)
As provided in subdivision (p)(1) “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.”
“[P]laintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense.” (See’s Candy v. Superior Court (2012) 210 Cal.App. 4th 889, 900)
“When the motion for summary judgement is supported by affidavits sufficient to sustain the motion, the burden of showing that triable issues exist shifts to the party opposing the motion. A party cannot avoid summary judgment based on mere speculation and conjecture…but instead must produce admissible evidence raising a triable issue of fact.” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.)
The Supreme Court has once again recently confirmed that the purpose of the 1992 and 1993 amendments to the summary judgment statute was “ ‘to liberalize the granting of [summary judgment] motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It is no longer called a “disfavored” remedy. “Summary judgment is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.) However, in determining the existence of a triable issue of material fact, an opposing party’s declarations and other evidence are liberally construed, while those of the moving party strictly construed. (D’Amico v. Bd. of Medical Examiners (1974) 11 Cal.3d 1, 21.)
1st cause of action- Breach of Fiduciary Duty (vs. Jose)
“To establish a cause of action for breach of fiduciary duty, a plaintiff must demonstrate the existence of a fiduciary relationship, breach of that duty and damages. [Citations]” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182.)
Plaintiffs submitted evidence proving each element of their breach of fiduciary duty cause of action against Jose. Plaintiffs submitted evidence suggesting they, Jose, and Defendant Josefina C. Nieto, individually and as Trustee of The Jose G.M. Nieto and Josefina C. Nieto Family Trust, are 100% owners of the subject real property (50% - Plaintiffs and 50% - Jose and Josefina), Jose has exclusively operated and managed the property – collected rents and expenses – since 1984, Jose provided Plaintiffs with a Schedule E (since 1984) reflecting their portion of the income/loss with regard to the property, Nieto never paid “net income” to Plaintiffs, the amount of the “net income” owed to Plaintiffs (for the years 2005 to 2018) is $109,997.00, plus interest, Plaintiffs were forced to pay the taxes on the “net income” that Jose reported on the Schedule Es even though Jose has not paid them, Rafael repeatedly asked Jose to provide him with an accounting of the income and expenses of the property, Jose never accounted to Plaintiffs for the income and expenses for the property (other than providing a yearly Schedule E), Jose has never distributed any net income from the property to Plaintiffs, Jose refused to distribute the net income until the property was sold, Jose represented he would transfer management to, provide bills and statements for the property to, and pay Plaintiffs $47,173.50 (via Rafael’s brother-in-law, Carlos Navarro), but never did so, and Jose continues to collect income, revenue, and profits from the property. (Declaration of Rafael ¶¶6-24, 29; Exhibits 1-7.) (Declaration of Bates ¶¶2-3; Exhibit 8.)
Plaintiffs having met their burden, the burden shifts to Jose to create a triable issue of material fact. (See C.C.P. §437c(p)(1).) As discussed below, Jose met his burden.
Jose has submitted evidence creating triable issues of material fact as to whether he breached a fiduciary duty owed to Plaintiffs.
Jose states he has collected rents, dealt with tenant issues, and taken care of all maintenance required with respect to the property for over 30 years. (Declaration of Jose ¶6.) Jose has and continues to maintain a bank account, separate and apart from any personal account that he may have. Jose declares that all income of the property has been regularly deposited into such separate account for the property. (Declaration of Jose ¶6.) All of the expenses of the property, including taxes, utilities, insurance, maintenance, and repair expenses, have been paid from the account. (Declaration of Jose ¶6.) Jose has not, at any time, ever used any funds generated by the rental of the units on the property for his own personal use and any such allegation is false. (Declaration of Jose ¶6.)
Jose declares he is not a professional manager and he has cared for the property solely because Plaintiffs reside on the east coast. Jose has never been compensated for any of the time he spent caring for the property. (Declaration of Jose ¶7.)
Jose recalls the purpose of the $138,000 loan (1994 earthquake) was for repairs and was obtained with participation of Plaintiffs in 1996. Jose spent countless hours dealing with the issues created by the earthquake, without any compensation. (Declaration of Jose ¶8.)
Jose has given accounting records to a CPA each year and had the CPA prepare the appropriate documents relating to the parties’ ownership of the property, one of which were the annual Schedule Es he sent to Plaintiffs. (Declaration of Jose ¶9.)
Jose goes on in paragraph 10 of his declaration to explain the property account handling over 30 years. At the end of 2017, Plaintiff Rafael expressed a desire for the distribution of any such excess funds and Jose responded to him by pointing out the reason for their retention. Jose submitted evidence suggesting he offered to transfer to Rafael the care of the property, but Rafael never responded to such an offer. (Declaration of Jose ¶10.)
Over the years, Jose was never asked to provide copies of the records. (Declaration of Jose ¶12.) Jose submitted evidence suggesting he received a letter from Rafael’s attorney requesting records for a period of over 30 years, which would have taken weeks if not months to complete, and he informed Rafael that, at the time they sell the property, an accounting would be made. (Declaration of Jose ¶12.)
Plaintiffs’ motion for summary judgment against Jose is denied. Plaintiff’s motion for summary adjudication of the 1st (breach of fiduciary duty) cause of action against Jose is also denied.
2nd cause of action for Constructive Fraud (2nd COA) (vs. Jose)
“The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516-517, fn. 14.) (But see Civil Code §1573 (no fraudulent intent required).)
Plaintiffs argue the “very same ‘facts’ that establish breach of fiduciary duty against [Jose] [Facts No. 1-41] also establish constructive fraud against [Jose]. [Jose] defrauded Plaintiffs of $109,997.00 in ‘net income’ from the Property.” (Motion, pg. 13.) (Emphasis Removed.)
However, as discussed above, there are triable issues of material fact as to whether Jose breached a fiduciary duty owed to Plaintiffs.
Plaintiffs’ motion for summary adjudication of the 2nd (constructive fraud) cause of action against Jose is denied.
3rd cause of action for Conversion (vs. Jose)
“‘A cause of action for conversion requires allegations of plaintiff’s ownership or right to possession of property; defendant’s wrongful act toward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff. [Citation.] Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. [Citation.]’ [Citations] A ‘generalized claim for money [is] not actionable as conversion.’ [Citations]” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)
Plaintiffs submitted evidence proving each element of their conversion cause of action against Jose. As set forth above, Plaintiffs submitted evidence suggesting they have a right to 50% of the net income from the property, Jose operated and managed the property – collecting rents and paying expenses, Jose provided Plaintiffs with Schedule Es since 1984, Jose never paid net income, and the total amount of unpaid net income owed to Plaintiffs (from 2005 to 2018) is $109,997.00, plus interest.
Plaintiffs have met their burden on summary judgment/adjudication. The burden shifts to Jose to create a triable issue of material fact. As discussed below, Jose met his burden.
Jose submitted evidence creating triable issues of material fact as to whether he wrongfully acted or disposed of the income from the property. As set forth above, Jose submitted evidence suggesting he has collected rents, dealt with tenants, and taken care of all the maintenance required with respect to the property for well over 30 years, all income of the property has been regularly deposited into a separate bank account, all expenses of the property have been paid from the account, Jose never used any funds generated by the rental of the units on the property for his own personal use, Jose has taken the income and expense records of the property and given them to a certified public accountant each year, the accountant has prepared the appropriate documents relating to the parties’ ownership of the property each year, Jose has delivered Schedule Es to Plaintiffs each year, any amount generated by the property over and above expenses has always – for 30 years – been retained in the property account (to meet any unexpected expenses), and such arrangement went on four 30 years without issue.
Plaintiffs’ motion for summary adjudication of the 3rd (conversion) cause of action against Jose is denied.
4th cause of action for Accounting and Appointment of Receiver to Collect Rents, Issues, and Profits and Injunctive Relief (4th COA) (vs. Josephine, Jose, and Chase)
The court notes that Plaintiffs’ move for summary adjudication of the 4th (accounting and appointment of receiver) cause of action only against Jose. (Notice of Motion, v:23-26)
Plaintiffs argue that “based upon [Jose’s] breach of fiduciary duty to Plaintiffs and the fraud [he] perpetrated upon Plaintiffs, Plaintiffs are entitled to an accounting of the income and expenses of the Property from 1984 to present.” (Motion, 15:4-8) However, as discussed above in detail, there are triable issues of material fact with respect to the breach of fiduciary duty, constructive fraud, and conversion causes of action against Jose. Consequently, summary adjudication is not warranted.
Plaintiffs’ motion for summary adjudication of the 4th (accounting and appointment of receiver) cause of action against Jose is denied.
5th cause of action for Contribution (5th COA) (vs. All Defendants except Defendant Jay Nieto and Chase)
It appears the contribution cause of action is directed against Jose and Josefina.
Plaintiffs did not meet their burden on summary judgment/adjudication. A cause of action for contribution requires a money judgment that has been rendered jointly against two or more defendants in a tort action. (C.C.P. §875(a).) Plaintiffs did not submit admissible evidence showing a money judgment has been entered.
Based on the foregoing, Plaintiffs’ motion for summary judgment against Josefina is denied. Plaintiffs’ motion for summary adjudication of the 5th (contribution) cause of action against Jose and Josefina is denied.
6th cause of action for Common Count (vs. All Defendants except Jay and Chase)
A cause of action for money had and received requires the following elements: (1) defendant received money that was intended to be used for the benefit of plaintiff; (2) the money was not used for the benefit of plaintiff; and (3) defendant has not given the money to plaintiff. (CACI 370; Motion 15:8-22).)
Plaintiffs argue “Facts Nos. 1-41 clearly establish that NIETO owe Plaintiffs the amount of $175,881.33 ($109,997.00 in ‘net income’ plus $65,884.33 in interest thereon).” (Motion, 15:20-22.) However, as set forth above, Jose submitted evidence creating triable issues of material fact as to whether Jose used the money for Plaintiffs’ benefit and/or was required to give Plaintiffs the money before the sale of the property.
Based on the foregoing, Plaintiffs’ motion for summary adjudication of the 6th (common count) cause of action against Jose and Josefina is denied.
7th cause of action for Common Count (vs. Jose and Jay)
Plaintiffs submitted evidence proving each element of the common count cause of action. Specifically, Plaintiffs loaned $67,500.00 to Jose and Jay, during the period of 1997 through 2003, Jose and Jay represented (through Jay) that they owed the money to Plaintiffs, and Plaintiffs have not received any portion of the $67,500.00. (Declaration of Rafael ¶¶30-37.) (See Moya v. Northrup (1970) 10 Cal.App.3d 276, 280 (referring to “a common count for moneys paid, laid out, expended, loaned or advanced to and for the defendant by the plaintiff at the former’s insistence and request”).)
Based on the foregoing, Plaintiffs met their burden on summary judgment/adjudication. The burden shifts to Jose to create a triable issue of material fact. As discussed below, Jose has met his burden.
Jose submitted evidence creating triable issues of material fact as to whether Plaintiffs loaned Jose and Jay money, as opposed to a voluntary investment opportunity. Although Jay himself has not submitted any evidence, Jose submitted evidence Rafael never loaned Jay money. Jose submitted evidence suggesting his son, Jay, opened a business known as Phase2 Autotrends which was opened in or about 1997. Jose submitted evidence Rafael and Jose invested in Jay’s business over time, they invested the same amounts, the hope and expectation was that, through the income of the business, their investments would be paid, Jay’s business closed sometime in 2003 or 2004, and Jose and Rafael lost their investment in the business. Jose submitted evidence he never agreed to repay Rafael’s investment in Jay’s business, he never signed any note or other memorandum setting forth any terms of a loan, and there has never been any agreement for the payment of interest on Rafael’s investment. (Declaration of Jose ¶¶13-16.)
Plaintiffs’ motion for summary judgment against Jay is denied. Plaintiffs’ motion for summary adjudication of the 7th (common count) cause of action against Jose and Jay is denied.
8th cause of action for Partition of Real Property by Sale and Division of Proceeds (vs. Jose, Josefina, and Chase)
A complaint for partition must set forth the following:
“‘It is…the accepted doctrine of the more recent authors upon the subject as well as of the appellate courts of this state that a cotenant is entitled to partition as a matter of absolute right; that he need not assign any reason for his demand; that it is sufficient if he demands a severance; and that when grounds for a sale are duly established it may be demanded as of right. To grant it is not a mere matter of grace.’ [Citations] However, the right of a cotenant to partition property may be modified or waived by reason of an agreement, express or implied, between him and his cotenant permitting a variance from the ordinary incidents of such cotenancy [Citations].” (Williams v. Williams (1967) 255 Cal.App.2d 648, 651-652.)
Plaintiffs argue that they, as tenants in common, have the absolute right to partition the property by sale and division of the proceeds. (Motion, pgs. 15-18.) However, Plaintiffs did not submit declarations requesting partition and sale of the property and/or supporting such a request.
Further, as set forth above, there is conflicting evidence regarding the parties’ agreement(s) with respect to the property.
Plaintiffs’ motion for summary adjudication of the 8th (partition) cause of action against Jose and Josefina is denied.
Plaintiffs’ motion for summary judgment/adjudication is denied.
 Plaintiffs argue Jose listed the property for sale without Plaintiffs’ authority and forged Plaintiffs’ signatures on a listing agreement that was delivered to Chris Thompson, a real estate broker. (Motion, pgs. 5-6.) However, Plaintiffs did not submit admissible evidence showing Jose listed the property for sale without their consent and/or forged their names on a listing agreement. Rafael’s declaration on information and belief is insufficient. (Declaration of Rafael ¶¶25-26.) Even assuming, arguendo, the court were to consider Rafael’s declaration, Jose submitted evidence creating a triable issue of material fact. Specifically, Jose submitted evidence suggesting he became aware, in early 2018, that Rafael had retained a broker to list the property for sale and, in response, he signed a listing agreement. Jose also submitted evidence suggesting he never forged Rafael’s signature on any documents, the broker hired by Jose obtained offers for the property in excess of $1,000,000.00, Jose conveyed such offers to Rafael, and Jose never received a response from Rafael. (Declaration of Jose ¶11.) (The court notes Plaintiffs have recorded a lis pendens.)