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.

***  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 12 issues identified in
the notice of motion and which of the 154 Undisputed Material Facts offered by
moving defendant 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.  ***

This matter was originally set for hearing on 11/22/2013 but was continued to this date
to permit plaintiff to file an amended separate statement in response because his
original separate statement failed to comply with the applicable provisions of Code of
Civil Procedure §437c(b)(3) and CRC Rule 3.1350(f), requiring that each material fact
claimed to be disputed “be followed by a reference to the supporting evidence,” with a
“citation to exhibit, title, page and line numbers.”  Instead, plaintiff’s original separate
statement included no references at all to any evidence claimed to show a disputed
material fact.  Plaintiff was given leave to file and serve a separate statement which
complies with all applicable provisions of §437c and 3.1350 and was advised that if he
failed to do so, the Court would likely not only deem the present motion to be
unopposed but also grant summary judgment in defendant Dessel’s favor.
Notwithstanding this admonition, plaintiff’s amended separate statement still fails to
comply with various provisions of both §437c and Rule 3.1350 but the Court has
nevertheless considered it and now issues the following tentative ruling.

Defendant Dessel’s motion for summary judgment, or alternatively for summary
adjudication of each of the six causes of action alleged in the complaint, is GRANTED
because moving defendant satisfied his initial burden under Code of Civil Procedure
§437c(p)(2) and plaintiff failed to meet his burden to produce admissible evidence
sufficient to demonstrate the existence of at least one triable issue of material fact
which precludes summary judgment/adjudication as a matter of law.

Moving counsel is admonished for failing to redact plaintiff’s social security number
and/or financial account information from the Volume of Evidence filed in support of
this motion (see, Ex. B attached to the Ford Declaration (identified as Ex. B), in
violation of CRC Rule 1.20(b).  Counsel is reminded that the Court’s new CCMS  system allows the public to electronically access and view all pleadings and
documents once they are filed unless the Court orders otherwise.  Thus, it is
imperative for counsel to appropriately redact all pleadings and documents
before filing.

Moving counsel shall promptly file and serve an appropriate noticed motion to seal
pursuant to CRC Rule 2.550 et seq. and lodge (not file) with the Court appropriately
redacted but otherwise identical version of the Volume of Evidence filed in support of
this motion which contains the unredacted social security number and/or financial
account information.  (The Court will not sign any order granting summary judgment or
any judgment in this case unless and until defendant’s motion to seal is heard and
granted.)

Plaintiff’s counsel is advised that at least two of the exhibits (see, Ex. B and G) to the
Ford Declaration filed in opposition to this motion also include plaintiff’s social security
number and/or financial account information.  Should plaintiff desire to protect this
information which is now accessible by the public via the Court’s CCMS system, he
should promptly file and serve an appropriate noticed motion to seal pursuant to CRC
Rule 2.550 et seq. and lodge (not file) with the Court appropriately redacted but
otherwise identical version of the Ford Declaration filed in opposition to this motion
which contains the unredacted social security number and/or financial account
information.

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 Ford alleges he was duped by one or more defendants into
contributing substantial sums of money for what turned out to be bogus investments.
The complaint in this action was filed on 2/1/2012 and alleges that in mid-2007, plaintiff
gave his life savings to certain defendants who were to invest it and provide plaintiff
with a return on his investment.  This did not happen and plaintiff’s complaint purports
to assert six causes of action (“COA”) against several defendants for conversion,
breach of fiduciary duty, violation of California’s Securities Act, negligent
misrepresentation, fraud and breach of contract.  Defendant Dessel insists he did not
participate in any of the wrongdoing alleged by plaintiff and was not, as (mis)
represented by co-defendant English, an agent, officer or director of any of the
fraudulent businesses.  Instead, Dessel claims he, like plaintiff himself, was merely an
investor in those businesses.

Defendant Dessel now moves for summary judgment/adjudication on various grounds
including that he did not participate in any wrongdoing alleged in the complaint, he
cannot for other reasons be liable for the alleged wrongdoing and each of plaintiff’s
claims is barred by the applicable statutes of limitations.  Specifically, Dessel seeks
summary adjudication of each of the six COA alleged by plaintiff on multiple grounds
and as support, defendant offers a total of 154 undisputed material facts (“UMF”).
Coupled with plaintiff’s failure even to argue otherwise, this Court finds that defendant
has satisfied his initial burden of production under Code of Civil Procedure §437c(p)(2)
and has thereby shifted to plaintiff the burden of affirmatively producing admissible
evidence sufficient to demonstrate the existence of at least one triable issue of  material fact which precludes summary judgment/adjudication as a matter of law.  As
explained below, although plaintiff contends a multitude of defendant’s 154 UMF are
disputed, he has failed to present any admissible evidence that shows this to be true.
In actuality, plaintiff’s opposition relies solely on two declarations to which numerous
objections have been asserted and sustained.  Moreover, plaintiff has failed to identify
any additional material facts (“AMF”) of his own which are claimed to show a triable
issue of material fact which might otherwise defeat the present motion.

Defendant’s objections to plaintiffs’ evidence in opposition are ruled on as follows:
Ford Decl.:     All objections are sustained except objection Nos. 2 and 4,
which are overruled.
Wirth Decl.:     All objections are sustained.

Plaintiff filed no separate written objections to defendant’s evidence in compliance with
CRC Rule 3.1354.  To the extent plaintiff has included in his separate statement in
response to defendant’s UMF purported objections to defendant’s evidence, these are
overruled because they fail to comply with the express requirements of CRC Rule
3.1354(b)(1)-(3).  Additionally, to the extent plaintiff’s separate statement also purports
to object to defendant’s UMF themselves (see, e.g., Resp. to UMF Nos. 1, 7, 11, 12,
23), these too are overruled because objections are properly directed only at evidence,
not UMF themselves. (See, CRC Rules 3.1352, 3.1354.)

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1   COA for Conversion.  Defendant contends this COA fails because plaintiff cannot
show that defendant Dessel exerted any control over the funds invested by plaintiff
(Issue 1; UMF Nos. 1-26) and because it is barred by the three year statute of
limitations (Issue 2; UMF Nos. 27-31).  Although plaintiff insists UMF Nos. 15-16, 19,
25-27 and 30-31 are disputed for various reasons, neither plaintiff’s reasons nor the
evidence he cites in response actually shows a triable issue of material fact with
respect to any of these eight (8) UMF.   First, even if supported by the cited evidence,
plaintiff’s responses to these UMF are largely non-responsive inasmuch as they do not
tend to show any actual conflict with the UMF themselves.  Second, the evidence cited
by plaintiff does not support his response to these UMF.  Third, the vast majority of
defendant’s objections to plaintiff’s evidence have been sustained.  It is also worth
noting here that plaintiff’s response to UMF Nos. 3-4, 14, 18, 21-23 and 29 was
“unknown” but such a response fails to present a triable issue of material fact because
plaintiff’s burden under Code of Civil Procedure §437c(p)(2) is to produce admissible
evidence which shows a triable issue of material fact.  For all these reasons, plaintiff
has failed to meet this burden of production with respect to Issue Nos. 1 and 2 relating
to the conversion claim and thus, defendant is entitled to summary adjudication on the
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1  COA.

2nd COA for Breach of Fiduciary Duty.  Defendant seeks summary adjudication on
the grounds that plaintiff did not have a fiduciary relationship with defendant Dessel
(Issue 3; UMF Nos. 32-57) and that this COA is barred by the applicable statute of
limitations (Issue 4; UMF No. 58).  Plaintiff contends UMF Nos. 36, 42-43, 45-46, 50,
52 and 56-58 are not undisputed but the Court disagrees.  Plaintiff’s responses to
these ten (10) UMF are non-responsive in that they do not actual show any material
dispute over these UMF as phrased but even if they did, plaintiff’s responses are not
supported by the evidence he cited and more importantly, defendant’s objections to
virtually all of the evidence cited by plaintiff have been sustained.  Additionally,
plaintiff’s response of “unknown” to UMF Nos. 34-35, 38, 49, 53 and 54 is of no
consequence since plaintiff must under Code of Civil Procedure §437c(p)(2) produce  evidence showing a triable issue of material fact.  Because plaintiff failed to meet this
burden of production with respect to UMF Nos. 32-58, summary adjudication is
granted as to Issue Nos. 3 and 4 and thus, defendant is also entitled to summary
adjudication of the 2nd COA for breach of fiduciary duty.

3rd COA for California Securities Act.  Defendant Dessel moves for summary
adjudication of this claim arguing that he did not sell or offer to sell any security to
plaintiff (Issue 5; UMF Nos. 59-82) and because it is barred by the three year statute of
limitations (Issue 6; UMF Nos. 84-85).  Although he contends that several of the UMF
relating to Issue 5 are disputed (i.e., Nos. 61-64, 66-68, 72 and 75), plaintiff “agrees”
with both of the UMF comprising Issue 6 and thus, even if summary adjudication is
denied as to Issue 5, summary adjudication must be granted as to Issue 6 since
plaintiff has expressly conceded there is no triable issue of material fact bearing on the
statute of limitations defense asserted in connection with the 3rd COA.  Regardless, the
Court finds no triable issue of material fact in connection with Issue 5 either as plaintiff
failed to present admissible evidence which establishes any triable issue of material
fact relating to UMF Nos. 61-64, 66-68, 72 and 75.  More specifically, even if otherwise
supported by the cited evidence, plaintiff’s own response to UMF Nos. Nos. 61-63, 66-
68 and 72 fails to show that any of these seven (7) UMF are in dispute and plaintiff’s
response to both UMF Nos. 64 and 75 is simply not supported by the cited evidence
even if such evidence is admissible.  (The Court notes that defendant’s objections to
plaintiff’s Exhibits A, H, I and J have been sustained.)  Since plaintiff failed to produce
admissible evidence demonstrating a triable issue of material fact as required by Code
of Civil Procedure §437c(p)(2), defendant’s motion is granted as to Issue 5 as well,
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mandating summary adjudication in favor of defendant on the 3   COA as well.

4th COA for Negligent Misrepresentation.  According to the moving papers, this
COA fails because plaintiff did not rely on any representation by defendant Dessel
before the former invested his money (Issue 7; UMF Nos. 86-100) and because it is
barred by the applicable statute of limitations (Issue 8; UMF Nos. 101-102).  The
opposition maintains that four (4) of the UMF cited as support for Issue 7 are disputed
(i.e., Nos. 95-98) but it “agrees” with both of the UMF comprising Issue 8 and thus,
regardless of the outcome of Issue 5, summary adjudication is granted on Issue 8 as
plaintiff admits there is no triable issue of material fact relative to the statute of
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limitations governing this 4   COA.  Nevertheless, summary adjudication must be
granted as to Issue 7 as well since the opposition cited no evidence whatsoever in
response to UMF Nos. 95-97 and since it cited no admissible evidence in response to
UMF 98 inasmuch as defendant’s objections to all of the evidence cited in response to
UMF 98 have been sustained.  Finally, plaintiff’s response to UMF Nos. 90 and 99 that
each is “unknown” fails to raise a triable issue of material fact in light of the burden
imposed by Code of Civil Procedure §437c(p) to produce admissible evidence.  As a
result of plaintiff’s failure to produce admissible evidence showing a triable issue of
material fact with respect to either Issue 7 or 8 and thus, defendant is also entitled to
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summary adjudication of the 4   COA on two independent grounds.

5th COA for Fraud.  Defendant insists he is entitled to summary adjudication of this
COA on the grounds that plaintiff did not rely on any representation by defendant
Dessel before the former invested his money (Issue 9; UMF Nos. 103-127) and that
this COA it is time-barred (Issue 10; UMF 128).  While plaintiff contends that the sole
UMF cited by defendant as support for Issue 10 is disputed, plaintiff offered no
evidence whatsoever in response to UMF 128 and he therefore failed to carry his
burden of producing admissible evidence which shows a triable issue of material fact                                                                                                        th
in connection with Issue 10, mandating summary adjudication of the 5   COA
regardless of whether plaintiff showed a triable issue of material fact relative to Issue
9.  However, the opposition also failed to raise a triable issue of material fact relative to
Issue 9 as well.  Plaintiff claims UMF Nos. 104-105, 111-115, 117-119, 122 and 126-
127 are disputed but he failed to cite any evidence whatsoever in response to UMF
Nos. 113, 115 and 126-127 and even if admissible despite defendant’s objections, the
evidence plaintiff cited in response to UMF Nos. 104-105, 111-112,114, 117-119 and
122 fails to show any triable dispute over these UMF.  Similarly, plaintiff’s response to
UMF Nos. 106, 121 and 123-125 that each is “unknown” is plainly insufficient to raise a
triable issue of material fact for the reasons already discussed above.  Because
plaintiff also failed to create a triable issue of material fact with respect to Issue 9,
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defendant’s motion is granted as to the 5   COA on the grounds asserted in both Issue
Nos. 9 and 10.

6th COA for Breach of Contract.  Defendant seeks summary adjudication on this
COA because plaintiff never entered into any contract with defendant Dessel (Issue
11; UMF Nos. 129-153) and because any claim that plaintiff entered into an oral
contract with defendant Dessel would be barred by the applicable two year statute of
limitations (Issue 12; UMF No. 154).  Since plaintiff admits that sole UMF cited by
defendant as support for Issue 12 is undisputed, defendant is entitled to summary
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adjudication of that issue (i.e., that the 6   COA is time-barred).  Additionally, the Court
finds that defendant is also entitled to summary adjudication of Issue 11 because
plaintiff failed to produce admissible evidence sufficient to raise any triable issue of
material fact in connection with Issue 11.  Although the opposition asserts that UMF
Nos. 131-133, 137-139, 141-144, 146-150 and 152 are in dispute, plaintiff offered no
evidence whatsoever in response to UMF Nos. 131, 141, 144 and 147, while the
evidence he cited in response to UMF Nos. 132-133, 137-139, 142-143, 146, 148-150
and 152, even if admissible despite defendant’s objections, is insufficient to show any
triable issue of material fact because this evidence does not actually conflict with any
of these twelve (12) UMF as phrased.  In sum, plaintiff failed to demonstrate with
admissible evidence any triable issue of material fact in connection with either Issue 11
or Issue 12 and thus, the Court finds that defendant Dessel is entitled to summary
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adjudication of the 6   COA for breach of contract.

Since summary adjudication has been granted as to each COA asserted in plaintiff’s
complaint, defendant Dessel is also entitled to summary judgment as a matter of law.

This minute order is effective immediately.  Pursuant to CRC Rule 3.1312, moving
defendant to prepare a proposed order and a proposed judgment.  (As noted above,
the Court will not sign any order granting summary judgment or any judgment in this
case unless and until defendant’s motion to seal is heard and granted.)