Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
CARP Property, LLC, v. Efrain Corona, et al.
Case No: 19CV04212
Hearing Date: Tue Feb 18, 2020 9:30

Nature of Proceedings: Motion Summary Judgment

Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues

Attorneys:

For Plaintiff: James W. Bates (Pasadena)

For Defendants Radius Group, Deering, and Gamberdella: Joseph C. Campo (Lewis, Brisbois, et al. – Los Angeles)

Ruling: The Court denies defendants’ Radius Group Commercial Real Estate, Inc., Gene S. Deering, and Paul J. Gamberdella’s motion for summary judgment or, in the alternative, summary adjudication.

Background

Plaintiff CARP Property, LLC (“CARP”), commenced this action on August 9, 2019. In its complaint, plaintiff alleges:

On March 15, 2016, Rafi Tarakjian, sole manager, CEO, and sole member of CARP, entered into a Residential Income Property Purchase Agreement to purchase property at 4647 Carpinteria Avenue in Carpinteria from Efrain Corona, trustee of the Efrain Corona Family 2005 Revocable Trust (“Corona”). On July 20, 2016, Tarakjian assigned all his interest in the purchase to CARP. Escrow closed on August 12, 2016.

Defendant Radius Group Commercial Real Estate, Inc., a real estate broker, was one of the “listing firms” for the sale of the property and was also the “selling firm.” Defendants Gene S. Deering and Paul J. Gamberdella are broker associates for Radius Group. Defendant Filippini Wealth Management, Inc., was a “listing firm” for the sale of the property. William Cordero was the broker of record for Filippini.

Approximately one month after close of escrow, two tenants of the property gave notice that they were terminating their tenancy because of noise from tenant Cross-Fit Studio.

Plaintiff discovered material defects on the property, including: tenants had complained about noise and loud music from Cross-Fit; the property was not sufficiently insulated to prevent noise from Cross-Fit to be heard in residential units; potential tenants had not been inclined to rent because of the noises and vibrations from Cross-Fit; and Cross-Fit users had been dropping weights on the ground and there were cracks in the concrete floor beneath the carpet. (Subsequently, CARP has stated that “the Complaint does not allege that Defendants failed to disclose a cracked floor underneath the gym’s floor.” [Response to Separate Statement of Undisputed Material Fact #1])

The causes of action in the complaint are: 1) breach of contract (Corona); 2) violation of Civil Code § 1102, et seq. (Corona); 3) fraudulent concealment (all defendants); 4) negligence (all defendants); 5) violation of Civil Code § 2079, et seq. (Radius Group, Gamberdella, Deering, Filippini, Cordero); and 6) breach of fiduciary duty (Radius Group and Deering).

MSC is scheduled for September 4 and trial for September 22, 2020.

Motion

Radius Group, Deering and Gamberdella (collectively “Radius Group”) move for summary judgment or, in the alternative, summary adjudication of the third through sixth causes of action and the claim for punitive damages. They contend that three separate statutes of limitation bar CARP’s claims; they did not breach a duty; CARP cannot demonstrate any misrepresentation or concealment relative to noise or a cracked floor, and CARP has not established the requisite elements of punitive damages.

1. Summary Judgment Standards: Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. (§ 437c, subd. (p)(2).)” Id.

“All that the defendant need do is to ‘show that one or more elements of the cause of action . . . cannot be established’ by the plaintiff. (Code Civ. Proc., § 437c, subd. (o)(2).)

In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action–for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element–for example, himself prove not X.” Id. at 853-854.

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Id. at 850. A burden of production entails only the presentation of evidence, while a burden of persuasion “entails the establishment through such evidence of a requisite degree of belief.” Id.

A party moving for summary judgment has the burden to show that it is entitled to judgment with respect to all of the plaintiff’s theories of liability. Lopez v. Superior Court, 45 Cal.App.4th 705, 717 (1996). The court “must deny the motion if there is a single issue of material fact in dispute.” Cates v. California Gambling Control Com., 154 Cal.App.4th 1302, 1308 (2007).

“A party may move for summary adjudication as to one or more causes of action within an action…. A motion for summary adjudication shall be granted only if it completely disposes of a cause of … or an issue of duty. CCP § 473c(f)(1). “A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion.” Case v. State Farm Mut. Auto. Ins. Co., 30 Cal.App.5th 397, 401 (2018), quoting Lunardi v. Great-W. Life Assurance Co., 37 Cal.App.4th 807, 819 (1995).

2. Objections to Evidence: CARP objects to portions of the declarations of Gene Deering and Joe Campo and exhibits thereto.

Objection

#1: CARP objects to Deering’s statement that he “interacted with [Tarakjian] … as well as his representative, Faycal “Alex” Hamad (“Hamadi”), who was to be the Property Manager.” The term “interacted with” does not lack foundation as Deering knows with whom he interacted. However, Deering does not state facts indicating his knowledge of Hamadi’s representative capacity or role as property manager. To that extent the Court sustains the objection.

##2, 3: Deering purports to identify a letter CARP’s counsel wrote to another defendant. There is no foundation for this identification. The Court sustains the objections.

##4, 5, 6, and 7: Deering identifies emails he wrote to Hamadi, one of which attaches an inspection report and other reports kept in the normal course of business at Radius Group. There is foundation for this identification. CARP also objects on the ground of relevance. What Deering sent to Hamadi may be a marginal relevance given the lack of foundation for Hamadi’s role. But the Court overrules the objections.

#8: There is foundation for Deering’s statement that Tarakjian did not attend events that Deering attended. Tarakjian’s involvement in inspections or lack thereof is relevant to his claims. The Court overrules the objection.

#9: CARP objects to Exhibit N to Deering’s declaration. Deering did not produce the report. The Court sustains the objection.

#10: CARP objects to ¶29 of its own complaint. CARP says this is irrelevant because it is not incorporated into the causes of action against these defendants. The complaint is not offered in evidence, so there is nothing to rule on. The Court will consider the complaint and its parts in context.

#11: CARP objects to its own responses to special interrogatories as irrelevant. CARP does not say how they are irrelevant. The Court overrules the objection.

3. Analysis

Radius Group contends that the fourth, fifth, and sixth causes of action are barred by the two-year statutes limitation and the third cause of action is barred by the three-year statute of limitation. Radius Group also contends that it did not breach any duties to CARP because no duty to investigate existed and there was no misrepresentation or concealment of noise issues.

Radius Group relies on the same 21 facts in its Separate Statement of Undisputed Material Facts (“SS”) in support of summary adjudication of each of the four causes of action and the claim for punitive damages. There are disputes as to some of those facts. (The court will only use the numbers for facts from the first time the 21 facts are stated.)

SS #4 states that Deering interacted with Tarakjian and his representative, Hamadi. SS#19 states that Radius Group provided CARP’s representative, Hamadi, with information pertaining to noise complaints. As discussed above regarding objections, there is a dispute as to Hamadi’s role as CARP’s representative. The Court has sustained the objection to Deering’s description of Hamadi as Carp’s or Tarakjian’s representative or future property manager. Tarakjian says he did not inform Deering or Radius Group that Hamadi was his representative and did not authorize them to deal with Hamadi on his behalf. [Tarakjian Dec. ¶¶17-22]

The Court “must deny the motion if there is a single issue of material fact in dispute.” Cates v. California Gambling Control Com., supra, 154 Cal.App.4th at 1308. “[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!” (Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 252 (2009), quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) § 10:95.1, p. 10-35.) By placing these facts in the separate statement as to each issue to be adjudicated, Radius Group concedes its materiality to each issue. (Radius Group does not have separate groups of facts for the statute of limitation, breach of duty, and lack of misrepresentation/concealment issues.)

Radius Group argues: “A simple disputed fact, even assuming its materiality, will not necessarily defeat a motion for summary judgment,” citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), “as cited in Aguilar.” [Motion 11:6-8] But, in Matsushita, the court simply said the issue of fact must be “genuine,” citing Fed.Rules Civ.Proc. 56(c), (e). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. The dispute here is more than metaphysical. Radius Group’s argument is not inconsistent with California authority holding that the court must deny the motion if there is a single issue of material fact in dispute and a moving party admits the materiality of all facts in its separate statement. If that is a difference between federal and California summary judgment procedure, that is consistent with Aguilar. “[S]ummary judgment law in this state now conforms, largely but not completely, to its federal counterpart as clarified and liberalized in … Matsushita.” Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 849 [italics added].

With the reply, Radius Group submits evidence that other communications to Hamadi did get through to Tarakjian. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” Jay v. Mahaffey, 218 Cal.App.4th 1522, 1537 (2013). Declarations submitted with a reply should not address the substantive issues in the first instance but should only fill gaps in the evidence created by the opposition. Id. at 1538. The additional evidence is offered to shore up the idea that Hamadi was CARP’s representative. But the gaps sought to be filled are gaps in Radius Group’s original evidence, not gaps created by the opposition.

Further, the additional evidence does not directly contradict Tarakjian’s statement that he never received the August 3, 2016 email. [Tarakjian Dec. ¶12] Radius Group has indicated receipt of that email is material in the separate statement and it appears crucial to Radius Group’s argument. The additional evidence may make it more likely that Hamadi would have passed information along to Tarakjian. But that is still a triable issue of material fact left for the trier of fact.

For the foregoing reasons, the Court denies defendants’ Radius Group Commercial Real Estate, Inc., Gene S. Deering, and Paul J. Gamberdella’s motion for summary judgment or, in the alternative, summary adjudication.