2011-00111747-CU-BC

Michael C Yang Trustee vs. Michael J Cimorelli Trustee

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

Filed By: Ginder, Eric R. *** If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the 35 Undisputed Material
Facts offered by the moving defendants and/or the 6 Additional Material Facts
will be addressed at the hearing and the parties should be prepared to point to
specific evidence which is claimed to show the existence or non-existence of a
triable issue of material fact. ***

Defendants Paul Norton and Premier Realty Associates’ (collectively “PRA”) motion for
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summary judgment or alternatively, for summary adjudication of the 5 and 9 Causes
of Action (“COA”) alleged in the complaint is DENIED because PRA failed to meet its
initial burden of production under Code of Civil Procedure §437c(p)(2) with respect to
both the motion for summary judgment and the alternative motion for summary
adjudication. Even if PRA were deemed to have met the initial burden of production
and deemed to have successfully shifted the burden, plaintiffs have met their burden of
showing a triable issue of material fact especially in light of the well established rule
that the evidence offered in opposition be construed liberally while the evidence in
support is construed narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74
Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.)

Moving counsel is admonished because the notice of motion does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06, and does not
provide the correct address for Dept. 54. 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 3.1350(b) and
(h), requiring all issues presented for summary adjudication be stated in the notice of
motion and repeated verbatim in the separate statement.

Moving counsel is admonished for failing to comply with CRC Rules 3.1110(b)(4) and
3.1116 (relating to the use of deposition transcripts as exhibit).

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1350(g), requiring all evidence (including declarations) in excess of 25 pages
be bound in a single volume of evidence with a table of contents.

Opposing counsel is admonished for failing to comply with CRC Rules 3.1110(b)(3).

This action arises out of plaintiffs’ purchase of residential real property. In short,
plaintiffs claim that the property suffers from various defects including water leaks
which were not disclosed prior to the close of escrow in January 2011. The complaint
alleges a total of nine (9) COA against various defendants. Plaintiffs allege that PRA
represented the sellers in this transaction and assert against PRA claims for general
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negligence claim (5 COA) and for violation of Business & Professions Code §17200
et seq. (9th COA).

Defendants PRA now move for summary judgment/adjudication on the grounds that all
of the allegedly defective conditions at issue in this litigation were properly disclosed to
plaintiffs prior to the close of escrow; PRA owed no duty to “elaborate on” the
disclosed conditions or to “verify” the sellers’ disclosures; and PRA did not violate any
provision of the Business & Professions Code.

However, PRA’s moving separate statement of Undisputed Material Facts (“UMF”)
does not separately identify any of these specific grounds on which this motion is
based but rather, PRA merely seeks summary judgment based on a collection of 33
UMF. Consequently, this Court need not address any of the specific grounds cited
above and if a triable issue of material fact is found with respect to any one of PRA’s
33 UMF, summary judgment must be denied. (See, Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 252 (citing Weil & Brown, Civil Procedure Before Trial,
Ch.10:95.1) [moving party’s inclusion of facts in its separate statement effectively
concedes each fact’s “materiality,” whether intended or not, and if there is a triable
dispute relating to any one, the motion must be denied].) Similarly, PRA’s alternative
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motion for summary adjudication of the 5 and 9 COA does not separately identify
any of the distinct grounds but instead merely offers a total of three (3) UMF (Nos. 33-
35). Thus, for the reasons noted above, if there is a triable issue with respect to UMF
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33, 34 or 35, summary adjudication of the 5 and 9 COA must be denied.

In opposition, plaintiffs assert that PRA failed to meet its initial burden of production
under Code of Civil Procedure §437c(p)(2); plaintiffs’ evidence is sufficient to establish
the existence of triable issues of material fact which mandate denial of both summary
judgment and summary adjudication; PRA, as sellers’ agent, owed a duty to conduct a
competent visual inspection of the property and to timely provide all disclosures to the
buyers; and PRA violated Business & Professions Code §17200 et seq. by failing to
conduct a competent visual inspection and to timely provide buyers with the
disclosures.

Objections to Evidence

Defendants PRA (timely) filed no written objections to evidence.

All of plaintiffs’ separate written objections to evidence are sustained. However,
plaintiffs’ additional purported objections in their response to PRA’s UMF 26 is
overruled because objections may be directed only at “evidence” and objections
referenced in one’s separate statement may not re-state or re-argue the objection to
evidence. (See, CRC Rules 3.1352, 3.1354.)

Defendants’ Failure to Satisfy Initial Burden of Production

Under Code of Civil Procedure §437c(p)(2), a defendant moving for summary
judgment/adjudication must present (admissible) evidence which shows that a plaintiff
cannot establish one or more elements of the cause of action or that there is a
complete defense to that cause of action.

As noted above, PRA moves for summary judgment against plaintiffs based on UMF
Nos. 1-33 but because all of plaintiffs’ written objections to evidence have been
sustained, the Court finds that UMF Nos. 8, 25-27 and 33 are supported by no
admissible evidence and PRA has therefore failed to meet its initial burden of
production with respect to these five UMF. Consequently, summary judgment must be
denied regardless of the evidence, if any, offered in opposition.

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Similarly, because PRA seeks summary adjudication of the 5 and 9 COA based solely on UMF Nos. 33-35 and because UMF 33 is not supported by any admissible
evidence, PRA has not met its initial burden with respect to this UMF. Thus, summary
adjudication must be denied whether or not plaintiffs provided any evidence in
opposition.

Plaintiffs Carried Burden of Showing Triable Issues of Material Facts

But even if PRA were deemed to have met its initial burden of production and deemed
to have successfully shifted the burden to plaintiffs, the latter have produced evidence
sufficient to show triable issues of material fact with respect to both summary judgment
and summary adjudication particularly since the opposing evidence must be construed
liberally while the supporting evidence is construed narrowly. (See, e.g., DiLoreto v.
Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75
Cal.App.4th 903.)

A. Summary Judgment. In response to the summary judgment motion, the
opposition characterizes UMF Nos. 3-4, 6-27, 30, 32 and 33 as “disputed” at least in
part and also offers six (6) of plaintiffs’ own Additional Material Facts (“AMF”) in an
attempt to show a triable issue which precludes summary judgment. When plaintiffs’
evidence is construed liberally, the Court finds that there are triable issues of material
fact with respect to UMF Nos. 4 and 24 which read as follows:

4. Plaintiffs wrote an offer to purchase the property for $1.3 million; they arrived
at this price on their own, without any input from their real estate agent, Ms.
Moore.

24. While Plaintiffs were present at the inspection on December 10, 2010,
[PRA’s] Mr. Norton stopped by the…property and hand-delivered the sellers’
Transfer Disclosure Statement (“TDS”), his own Agent’s Visual Inspection
Disclosure (“AVID”), a Supplemental Statutory Disclosure Statement (“SSD”)
and a disclosure form entitled 4926 Moreau Ct. Disclosure Form created by the
sellers and referenced as “Seller Sep. List” in the TDS and “See Separate List”
on the SSD form.

Although PRA’s reply papers argue that the disputes over these two UMF does not
preclude summary judgment because neither UMF “has any real bearing on liability in
this case” (Reply, p.3:5-11), PRA’s inclusion of both UMF Nos. 4 and 24 effectively
concedes their “materiality” whether intended or not and the existence of a dispute
relating to either mandates denial of summary judgment regardless of PRA’s belated
attempt to minimize their relevance. (See, Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1)
[moving party’s inclusion of facts in its separate statement effectively concedes each
fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to
any one, the motion must be denied].)

Additionally, the Court holds that plaintiffs’ AMF Nos. 5 and 6 present triable issues of
material fact which preclude summary judgment in favor of PRA. These two AMF
provide in their entirety:

5. Plaintiff Buyers signed the Purchase Agreement and Joint Escrow
Instructions on August 9, 2010. They were not provided with the Transfer
Disclosure Document (TDS) document for signature until December 11, 2010. The TDS document is intended to provide a prospective buyer with sufficient
information early enough in the sales/purchase process to make an informed
decision. Because [PRA’s] Mr. Norton failed to provide the TDS document to
buyers at an earlier time, closer to the date of the purchase agreement, Mr.
Norton fell below the standard of care.

6. The fact that buyers intended and did conduct a whole house inspection by a
third party does not relieve sellers’ agent from his duty to provide all disclosure
statements including his AVID to the parties in the transaction and to do so in a
timely fashion.

Both AMF are premised on the expert declaration submitted by plaintiffs to which PRA
filed no timely written objections. Thus, this evidence is admissible and must be
construed liberally in favor of the opposition. Since this evidence is sufficient to show
that PRA breached the standard of care by failing to provide plaintiffs with certain
disclosure documents, it establishes the existence of a triable issue of material fact
which precludes summary judgment here.

B. Summary Adjudication. PRA’s alternative motion for summary adjudication of the
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5 and 9 COA is based only on UMF Nos. 33-35. Although the Court holds that
plaintiffs have failed to present evidence which shows any triable issue with respect to
UMF Nos. 33-35, plaintiffs’ AMF Nos. 5 and 6 are for the same reasons discussed
above sufficient to show triable issues of material fact which also precludes summary
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adjudication of both the 5 and the 9 COA.

Conclusion

Based on the foregoing, PRA’s motion for summary judgment or alternatively, for
summary adjudication is denied because PRA failed to meet its initial burden of
production under Code of Civil Procedure §437c(p)(2). Even if PRA were deemed to
have met its initial burden of production and successfully shifted the burden, plaintiffs
have met their burden of showing triable issues of material fact in connection with UMF
Nos. 4 and 24 as well as AMF Nos. 5 and 6. This conclusion is reinforced by the rule
requiring evidence in opposition be construed liberally.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, plaintiffs to
prepare a formal order which conforms to Code of Civil Procedure §437c(g).