2012-00118111-CU-BC

Frank G Ford vs. Allan C English

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: O’Neil, Karen A.

Defendant Dessel’s motion for summary judgment/adjudication is on the Court’s own
motion CONTINUED to 12/18/2013 at 9:00 a.m. in this department, as follows.

Moving counsel is admonished because the notice of hearing/motion/demurrer does
not provide notice of the Court’s tentative ruling system, as required by Local Rule
1.06. Moving counsel is directed to contact opposing counsel and advise him/her of
Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a
hearing. If moving counsel is unable to contact opposing counsel prior to
hearing, moving counsel is ordered to appear at the hearing in person or by
telephone.

Moving counsel is also admonished for failing to comply with CRC Rule 3.1110(b)(3)-
(4), Rule 3.1113(d)-(e), and Rule 3.1350(b).

Opposing counsel is admonished for failing to comply with Code of Civil Procedure
§437c(b)(3) and CRC Rules 3.1110(b)(3)-(4) and 3.1350(f)-(h).

In this litigation plaintiff alleges he was duped by one or more defendants into
contributing substantial sums of money for what turned out to be bogus investments.
Defendant Dessel now moves for summary judgment/adjudication on various grounds
including the statute of limitations.

Although plaintiff filed what is labeled an opposition to defendant’s motion for summary
judgment, plaintiff’s separate statement in response to defendant’s 154 undisputed
material facts (“UMF”)includes not a single citation to evidence which is claimed to
support his contention that there is a triable issue of material fact which precludes
summary judgment/adjudication even though Code of Civil Procedure §437c(b)(3)
expressly provides in pertinent part:

“Each material fact contended by the opposing party to be disputed shall be
followed by a reference to the supporting evidence . Failure to comply with this
requirement of a separate statement may constitute a sufficient ground, in the
court’s discretion, for granting the motion.” (Emphasis added.)

Similarly, CRC Rule 3.1350(f) specifically requires that where the opposing party
contends a particular UMF is “disputed,” he “must state…the nature of the dispute and
describe the evidence that supports he position that the fact is controverted” and “That
evidence must be supported by citation to exhibit, title, page and line numbers.” (Emph
asis added.) Notwithstanding the foregoing requirements, plaintiff’s separate
statement contains no references at all to any evidence claimed to show a dispute
over defendant’s UMF and this alone precludes the Court from being able to determine
whether there is any triable issue of material fact.

Although the Court could under Code of Civil Procedure §437c(b)(3) grant defendant
motion, this Court is according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th
243 vested with discretion to defer ruling on the present motion for summary judgment
until plaintiff is given an opportunity to file a proper separate statement. (Nazir, at 263
(citing Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133
Cal.App.4th 1197, 1211).)

Since the granting of defendant’s motion would be dispositive of this action, this Court
reluctantly opts to provide plaintiff with a second and final opportunity to comply with
the requirements of Code of Civil Procedure §437c and CRC Rule 3.1350 by filing a
separate statement which complies with all applicable requirements.

Plaintiff may file and serve an amended separate statement which complies with all
applicable provisions of Code of Civil Procedure §437c and CRC Rule 3.1350 no later
than 12/3/2013.

Defendant may file and serve a reply only to plaintiff’s amended separate statement, if
any, no later than 12/10/2013.

Should plaintiff fail to timely file and serve a separate statement which complies with all
applicable provisions of Code of Civil Procedure §437c and CRC Rule 3.1350, it is
likely this Court will not only deem the present motion to be unopposed but also to
grant summary judgment in defendant Dessel’s favor.

The clerk is directed to mail a copy of this Minute Order to all counsel of record.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)