Case Number: VC058913 Hearing Date: April 15, 2014 Dept: SEC

AMADOR v. CABALLERO
CASE NO.: VC058913
HEARING: 04/15/14

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TENTATIVE ORDER

Defendant JOHN HARRIS’s motion for summary judgment or, in the alternative, summary adjudication is GRANTED in its entirety. C.C.P. § 437c.

Defendant Harris seeks summary adjudication of several of the claims asserted by plaintiffs GERMAN AMADOR and ALL TRANS ENTERPRISE, INC. in their Second Amended Complaint. In opposition, plaintiffs concede that the motion should be granted with respect to the 1st (breach of contract), 5th (negligent interference with prospective economic advantage), 9th (breach of the implied covenant of good faith and fair dealing), 14th (IIED) and 15th (declaratory relief) causes of action. It is so ordered. The remainder of the motion is granted for the reasons set forth below.

As a preliminary matter the Court notes that this motion was initially set for hearing on April 10, 2014. The Court granted plaintiffs’ ex parte request for a continuance due to counsel’s representation that she needed additional time to prepare the opposition in light of the numerous and recent discovery disputes among the parties. Plaintiffs were given 5 additional days to serve and file the opposing papers. Despite the additional time granted, the opposing papers are replete with procedural defects to which defendant’s objections must be sustained.

First, plaintiffs failed to file a Separate Statement of Material Facts to assist the moving party (and the Court) in determining (1) which facts are undisputed, and (2) which facts the evidence submitted purports to support. See C.C.P. § 437c(b); C.R.C., Rule 3.1350. Plaintiffs’ failure to comply with the procedural rule is ground to grant the motion. C.C.P. § 437c(b)(3); Oldcastle Precast, Inc. v. Lumbermens Mutual Cas. Co. (2009) 170 Cal.App.4th 554; Batarse v. Service Employees Int’l Union Local 1000 (2012) 209 Cal.App.4th 820.

This is not a case involving a singular issue or one which involves minimal evidentiary support. Plaintiffs’ Second Amended Complaint, exclusive of the exhibits, is 66 pages in length. Defendant Harris’s Separate Statement of Facts consists of 119 facts. The Court cannot ascertain the particular facts upon which plaintiffs rely to support their arguments as to each of the causes of action.

Second, the evidence submitted with the opposition is incomplete and, to a large extent, inadmissible. In her declaration, counsel Eva Plaza attests to facts of which she does not appear to have personal knowledge. Much of plaintiff Amador’s declaration is hearsay.

Plaintiff’s documentary evidence is not separately bound or prefaced with a table of contents. Many of the “exhibits” (Exhibits C, E and I) are merely cross-references to the exhibits to the Second Amended Complaint and not separately attached.

None of the exhibits are authenticated through attorney declaration (or otherwise). Some of the exhibits are simply missing (Exhibits G, H, K). Plaintiffs attempted to cure that defect by their filing on April 10, 2014. Missing Exhibit G was attached to the “Notice of Errata,” along with certified copies of exhibits L and M. That evidence was untimely submitted and cannot properly be considered.

To compound the errors, plaintiffs mis-reference the evidence throughout the opposition (see p. 7’s reference to Exhibit F as the cross-complaint). The use of “Id.” throughout the points and authorities is abundant (and often improper). Without a separate statement of facts, it is nearly impossible to follow the arguments set forth in the opposition and impossible to identify the existence of disputed facts. See Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107.

Defendant’s evidentiary objections are SUSTAINED in their entirety. Defendant did not submit a proposed order as required by California Rules of Court, Rule 3.1354. He may do so within 5 days of the hearing to obtain formal rulings.

Turning to the merits of the motion itself, the Court finds that defendant Harris met his initial burden of proffering evidence to support the motion. C.C.P. § 437c(p)(2).

Defendant JOHN HARRIS was first named as a defendant in the First Amended Complaint, filed November 1, 2012. He was retained by co-defendants to provide legal services related to their business dealings in the subject transportation industry. Harris decl. His representation of defendants Keolis and CDSNet ended on November 30, 2009. Harris decl., Exh. F.

Harris also provided legal services for defendant Express Transportation Services (“ETS”) in 2009 through 2011; Harris decl., decl. of Victor Caballero.

Harris was not an employee, officer, director or shareholder of the entity defendants. Harris decl., ¶¶2, 4.; Caballero decl., ¶4; depo. of Craig Smedman, p. 33. Harris also represented plaintiff Amador in the underlying “Fiesta Taxi” matter, which was settled in November 2009. RJN, Exh. C. Plaintiff himself alleges that in December 2009, he terminated his relationship with defendant Harris. SAC, ¶81.

Because defendant’s sole role in the alleged events was as an attorney, the claims against him arise out of malpractice. Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54; see also Pompilio v. Kosmo, Cho & Brown (1995) 39 Cal.App.4th 1324.

Defendant argues that plaintiffs’ claims are barred by the one-year statute of limitations. See C.C.P. § 340.6. To the extent the statute of limitations may be extended in an instance of fraud, plaintiffs cannot benefit from the additional time period because they admit that they discovered the alleged fraud by December 2009. SAC, ¶108. Plaintiff’s complaint against him was filed almost three years later and is barred by the statute of limitations.

As fully argued in the moving papers, plaintiffs failed to identify any instance of fraud against defendant Harris. The allegations in the SAC reference “defendants” collectively, and do not include any misrepresentation or omission on the part of defendant Harris. See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167. Plaintiff Amador admitted that he did not have direct communications with Harris when the subject agreements were signed. PMK depo., Vol. II., p. 86-88. Insofar as the unfair competition cause of action is based on the purported fraudulent conduct, it too must fail.

For the reasons set forth above, defendant JOHN HARRIS’s motion for summary judgment is granted in its entirety.