Case Name: Bette Spaich v. Sekul Spaich, et al.
Case No.: 17CV309946

I. Background

Plaintiff Bette Spaich (“Plaintiff”), a self-represented litigant, commenced this action against defendants Sekul Spaich (“Sekul”), Theodore Miljevich (“Miljevich”), and Gavrilo Spaich (“Gavrilo”), individually and as trustee of the Spaich Family 1987 Trust, to satisfy judgments obtained in two previous actions.

Plaintiff alleges two judgments in the amounts of $161,798 and $357,199.25 were entered in her favor and against Gavrilo in Sutter County Superior Court. To satisfy these judgments, Plaintiff claims she is entitled to $500,000 that Miljevich agreed to pay Gavrilo to settle their separate lawsuit concerning a loan secured by a deed of trust. Plaintiff alleges Gavrilo was supposed to reconvey a deed of trust to Miljevich in exchange for the $500,000 payment, but instead fraudulently assigned the deed of trust to his son Sekul who refuses to reconvey the deed of trust to Miljevich as required by the settlement agreement.

Plaintiff asserts four causes of action: (1) “Creditor’s Suit – C.C.P. §[ ]708.210”; (2) “Avoidance of Fraudulent Transfer – [Civil Code] § 3439.04”; (3) “Assignment of Moneys due Compromise Settlement and Release Agreement and/or Moneys on Obligation Secured by Deed of Trust – C.C.P. §[ ]708.510”; and (4) “Assignment of Interest of Defendant Gavrilo Spaich [and] Spaich Family 1987 Trust – C.C.P. §[ ]708.510.” It is not especially clear whether each of these claims is asserted against all of the defendants or only some of them. In any event, it appears Plaintiff’s claims against Miljevich are the only claims that remain at issue as she dismissed Gavrilo from this action and the Clerk entered Sekul’s default.

Currently before the Court is Plaintiff’s motion for summary judgment, which is accompanied by a request for judicial notice. Miljevich opposes the motion and also filed a request for judicial notice in support.

II. Standard of Review

A plaintiff may move for summary judgment “if it is contended that. . . there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “A plaintiff [ ] 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.” (Code Civ. Proc., § 437c, subd. (p)(1).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).) “Once the plaintiff [ ] has met that burden, the burden shifts to the defendant [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) “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 a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Requests for Judicial Notice

Plaintiff and Miljevich request judicial notice of court records.

When a court takes judicial notice, it recognizes and accepts “the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [internal quotation marks and citation omitted].) A court may take judicial notice of relevant court records. (Evid. Code, § 452, subd. (d).) When taking judicial notice of court records, a court does not presume the truth of the allegations or facts stated therein. (Sosinky v. Grant (1992) 6 Cal.App.4th 1548, 1564-67.) A court simply takes judicial notice of the fact the records say what they say. (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608, fn. 3.)

Here, Plaintiff requests judicial notice of 12 court records from Theodore Miljevich v. Gavrilo Spaich, No. 2013-1-CV-256443 as well as a record from a case in Sutter County Superior Court identified as No. CVCS-08-0716. But as reflected in the discussion of the merits of the motion below, it is unclear how these records are relevant. It is also unclear if Plaintiff seeks judicial notice of the fact that the records say what they say, which is permissible, or of the truth of factual statements or allegations, which is improper. For these reasons, Plaintiff’s request for judicial notice is DENIED.

Miljevich requests judicial notice of a notice of claim of lien filed by Gavrilo’s counsel in Theodore Miljevich v. Gavrilo Spaich, No. 2013-1-CV-256443. It is unclear how this notice is relevant to the issues before the Court. Accordingly, Miljevich’s request for judicial notice is also DENIED.

IV. Merits of Motion

Plaintiff’s motion for summary judgment is wholly unsubstantiated.

First, when a party moves for summary judgment, his or her “supporting papers shall include a separate statement setting forth plainly and concisely all material facts that [he or she] contends are undisputed.” (Code Civ. Proc., § 437c, subd. (b)(1).) These supporting papers, inclusive of the separate statement, must be served at the same time as the notice of the motion. (Code Civ. Proc., § 437c, subd. (a)(2).) Plaintiff did not serve or file her separate statement along with her notice of motion and other supporting papers, and her untimeliness is tantamount to a complete failure to present a separate statement. Plaintiff did not file her separate statement until after Miljevich opposed her motion and the record does not reflect she thereafter served him with a copy of it such that it appears he has not even had an opportunity to respond. If the moving party fails to file a separate statement, a court has discretion to deny his or her motion on that basis. (Code Civ. Proc., § 437c, subd. (b)(1).) Here, Plaintiff’s significant untimeliness justifies denying her motion.

Additionally, Plaintiff’s separate statement of undisputed facts is unilluminating as is her memorandum of points and authorities. Plaintiff does not provide any explanation or legal analysis to support the conclusion that she is entitled to summary judgment. Plaintiff does not address the claims asserted in her complaint as necessary to demonstrate she has evidence to support each of the essential elements of those claims. Furthermore, it is not otherwise obvious Plaintiff can establish all of her claims because not all of them appear to be recognized causes of action. For example, two of Plaintiff’s claims are based on Code of Civil Procedure section 708.510, which “authorizes a court, upon the motion of a judgment creditor, to order a judgment debtor to assign a right to payment to the judgment creditor.” (Landstar Global Logistics, Inc. v. Robinson & Robinson, Inc. (2013) 216 Cal.App.4th 378, 390.) Because Code of Civil Procedure section 708.510 establishes a statutory procedure for enforcing a judgment, it is not obvious Plaintiff may properly rely on that statute for purposes of asserting independent causes of action. In any event, instead of demonstrating the claims asserted can be established, Plaintiff simply restates some of the allegations in her complaint.

For these reasons, Plaintiff does not carry her initial burden of demonstrating she is entitled to summary judgment. Accordingly, the burden does not shift to Miljevich and Plaintiff’s motion is DENIED.