Case Name: Marvin Morazan v. Janet Morazan-Aviles

Case No.: 1-12-CV-220779

Motion for Summary Judgment, or Alternatively, for Summary Adjudication to the Second Amended Complaint by Defendant Janet Morazan-Aviles

This is an elder abuse and conversion action. Plaintiff Marvin Morazan (“Plaintiff”) and Defendant Janet Morazan-Aviles (“Defendant”) are siblings and the son and daughter, respectively, of Edgar Morazan (“Edgar”) and Teresa Morazan (“Teresa”). In 2008, Edgar and Teresa began receiving settlement proceeds from an asbestos case in which Edgar was a plaintiff. In total, Edgar and Teresa received approximately $700,000 from the settlement. Edgar passed away in October 2008. Teresa passed away in June 2011. According to Plaintiff, both before and after his parents’ deaths, Defendant took control of, managed, and ultimately misappropriated their parents’ monies.
On September 24, 2012, Plaintiff filed a second amended complaint (“SAC”), now the operative pleading, alleging the following causes of action: (1) elder and fiduciary abuse; (2) fraud; (3) constructive fraud; (4) breach of oral contract; (5) breach of implied contract; (6) breach of fiduciary duties; (7) negligence; (8) conversion; (9) accounting; and (10) declaratory relief.

On February 28, 2014, Defendant filed the motion presently before the court, a motion for summary judgment, or alternatively, summary adjudication to the SAC. (Code Civ. Proc. § 437c.) In opposition, Plaintiff has requested a continuance of the motion to conduct additional discovery and an award for sanctions. No trial date has been set.

Evidence

Defendant’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (c), (d), (h); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [court may take judicial notice of the existence and recordation of real property deeds]; see also Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

Plaintiff’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d); Stepan v. Garcia, supra, 43 Cal.App.3d at p. 500 [the court may take judicial notice of its own file].)

Motion for Summary Judgment, or Alternatively, Summary Adjudication

Defendant seeks an order from the court for summary judgment with respect to the SAC on the ground that there is no triable issue of fact. Alternatively, Defendant requests an order for summary adjudication with respect to eleven issues raised in the Notice of Motion.

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Similarly, “summary adjudication is proper if the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to prevail on a cause of action as a matter of law.” (Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1386-1387.)

1. December 24, 2013 Stipulation and Order

As a preliminary matter, Plaintiff argues that Defendant filed the motion for summary judgment in violation of a court stipulation and order filed on December 24, 2013. (See Declaration of Paul Koenig at pp. 1-2; Exhibit 1.) The stipulation provides that the parties would agree to mediate and attempt to settle the matter with Judge Jamie Jacobs-May as the mediator. (Id. at Exhibit 1.) The stipulation and order goes on to state the following:

“MOTIONS FOR SUMMARY JUDGMENT: No motions for summary judgment shall be filed prior to completion of mediation.”

(Ibid.)

On February 7, 2014, Defense Counsel sent an email to Plaintiff’s attorney canceling the mediation. (See Declaration of Paul Koenig at pp. 1-2; Exhibit 2.) Also, in Defendant’s case management statement for May 20, 2014, Defendant indicates that a mediation session has not yet been scheduled. (Id. at Exhibit 3.) Even though mediation had not yet taken place, it appears that Defendant filed a motion for summary judgment on February 28, 2014, in violation of the court’s stipulation and order.

In reply, Defendant argues that participation in mediation is completely voluntary and does not constitute grounds for dismissal or continuance of the motion. In support, Defendant cites to Jeld-Wen, Inc. v. Sup. Ct. (2007) 146 Cal.App.4th 536, where the appellate court, citing Business and Professions Code section 467.7, stated that “unless the parties have agreed to a binding award, any party who voluntarily enters mediation may revoke its consent and withdraw from the dispute resolution process.” (Id. at p. 541.) However, this case is distinguishable from Jeld-Wen because it does not involve a trial court ordering the parties in a complex action to mediation and imposing sanctions. Rather, the current action is a situation where the parties themselves stipulated and agreed to mediation before the filing of any summary judgment motion. Thus, Jeld-Wen is inapposite. Furthermore, there is no supplemental order in this record modifying the prior order that no summary judgment motion be filed until mediation has been completed. Therefore, the court finds that Defendant’s motion for summary judgment, or in the alternative, summary adjudication was filed prematurely and in violation of the court’s stipulation and order.

2. Plaintiff’s Request to Continue the Motion for Summary Judgment, or Alternatively, Summary Adjudication to Conduct Additional Discovery

Alternatively, Plaintiff seeks to continue the motion to conduct additional discovery.

“A plaintiff generally cannot defeat a well-founded summary judgment motion without setting forth specific facts controverting the motion. An exception is made for an opposing party who has not had an opportunity to marshal the evidence, and a summary judgment motion will be denied or continued if the opposing party declares that ‘facts essential to justify opposition may exist but cannot, for reasons stated, then be presented.’ Upon such a declaration, the trial court’s discretion is strictly limited and a continuance may be mandated.” (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 770.)

“The nonmoving party seeking a continuance must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. The trial court need not grant a continuance where the proposed discovery is focused on matters beyond the scope of the dispositive issues framed by the pleadings.” (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)

“When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefore. That determination is within the court’s discretion.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)

Here, Defendant’s motion for summary judgment is primarily based on the argument that Plaintiff has no evidence to support his claims. According to the declaration of Plaintiff’s counsel, a continuance is necessary to obtain outstanding discovery that includes additional documents and a continuation of Defendant’s deposition. (See Declaration of Paul Koenig at pp. 2-6; Exhibits 4 and 9.) The outstanding discovery appears relevant to Plaintiff’s claims that Defendant misappropriated their parents’ monies. (Ibid.) Plaintiff argues that Defendant has not been cooperative in providing such discovery in this action. Furthermore, on May 1, 2014, Judge Manoukian signed a discovery order compelling Defendant to produce documents in response to a deposition notice and appear for further deposition within 30 days. (Id. at Exhibit 9.) Thus, Plaintiff would need additional time beyond May 20th, the hearing date for the motion, to obtain this outstanding discovery. This would include a review of document responses that Defendant only recently served on Plaintiff on May 12, 2014. (See Reply Declaration of Patricia Boyes at Exhibit D.) In fact, Plaintiff estimates that he can obtain the necessary discovery within a three month period. (Id. at p. 6.) Therefore, at a minimum, Plaintiff has provided the court with good cause to continue Defendant’s motion for summary judgment.

3. Plaintiff’s Request for Sanctions

In opposition, Plaintiff requests an award for sanctions. (See OPP at p. 2.) However, Plaintiff fails to cite any legal authority to support his request for sanctions. (See First City Properties, Inc. v. MacAdam (1996) 49 Cal.App.4th 507, 517 [appellate court held that due process is not satisfied if it cannot be determined on a full record the statute under which the sanctions are imposed].) Furthermore, the court finds that an award of sanctions is not warranted at this time.

Disposition

Defendant’s motion for summary judgment, or in the alternative, summary adjudication is CONTINUED to: (1) allow the parties to participate in and complete mediation; and (2) allow Plaintiff to obtain the needed discovery within a three month period.

Plaintiff’s request for sanctions is DENIED.