Case Number: SC117239 Hearing Date: June 23, 2014 Dept: P

TENTATIVE RULING – DEPT. P

JUNE 23, 2014 CALENDAR No: 3

SC117239 — M & Y MGMT. v. SHABATIAN, et al.

PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION

Evidentiary matters

All requests for judicial notice and evidentiary objections are denied as moot for the reasons stated below.

Merits

In this fraudulent transfer action, Plaintiff, a judgment creditor of Eiliel Namvar and his wife, Nosrate Esmailzadeh (“the Namvar Defendants”) asserts that the Namvar Defendants executed a sham deed of trust in favor defendant Haron Shabatian, a member of their family. Plaintiff’s complaint alleges two causes of action: one to set aside fraudulent conveyance (or, alternatively, for damages for fraudulent conveyance), and declaratory relief. Plaintiff moves for summary adjudication as to both claims. The Court will deny the motion without prejudice due to two material procedural defects.

Code of Civil Procedure section 437c(f)(1) provides: “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty” (emphasis added).

Thus, “there can be no summary adjudication of less than an entire cause of action.” McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, 975. See also, e.g., Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323 (“[t]he Legislature declared the purpose of the amendment to [Code of Civil Procedure section 437c,] subdivision (f): ‘to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or defense'”); DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 418–419 (motion for summary adjudication may not attack one particular compensatory damage claim if granting the motion would leave intact the cause of action containing other claims for compensatory damages); Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106 (the plaintiff “could not establish a prima facie entitlement to summary judgment without showing both the fact and the amount ofdamages”) (emphasis added).

The motion at bar seeks piecemeal adjudication of Plaintiff’s first cause of action, in violation of CCP 437c(f) and without any indication of compliance with 437c(s) [operative until January 2015]. Plaintiff seeks summary adjudication as to only a portion of its first cause of action, viz., it only seeks to establish a fraudulent transfer. Plaintiff does not attempt to carry its initial moving party’s burden, under CCP 437c(p)(1), as to the amount of damages it claims to be entitled to as a result of the alleged fraudulent transfer. Indeed, it expressly seeks to reserve trial on the issue of damages for a later time, notwithstanding the statement in the complaint, at paragraph 16 thereof, that damages are sought in the alternative. See, Notice of Motion at 2:25- 26 and “[Proposed] Order Granting [Motion] Reserving The Issue of Damages for Trial” at 3:22-24. The Court note s that paragraph 16 of the complaint is arguably inconsistent with paragraphs 7, 8, and 9 of the prayer as to the first cause of action; the latter group does not specify that damages are sought in the alternative.

As to the first cause of action, Plaintiff essentially seeks a declaration from the Court that Defendants fraudulently transferred the property. In light of CCP 437c(f) and case law construing same, the fact that Plaintiff has expressly sought to reserve trial on the issue of damages for a later time, and based on the lack of evidence of the amount of damages caused by the alleged transfer, the Court cannot (at this time) grant summary adjudication as to the first cause of action, regardless of the merits, if any, of Plaintiff’s claim of fraudulent transfer.

An additional material defect in the motion is that the separate statement in support thereof does not comply with CRC 3.1350(d) and (h). The two issues set forth in the separate statement do not identify “each cause of action, claim, issue of duty, or affirmative defense….” CRC 3.1350(d); see also, CRC 3.1350(h).

Although not as material as the above-discussed procedural deficiencies,
there is another deficiency in the moving papers which the Court must point out. The motion relies heavily on the 71-page transcript of defendant Shabatian’s examination, attached as Exhibit 2 to the motion. However, Plaintiff did not submit the transcript in the manner required by CRC 3.1116(a), CRC 3.1116(b), and CRC 3.1116(c). Rather, Plaintiff submitted the entire condensed (e.g., “mini”) transcript whose font size makes it very difficult to read, and which is not highlighted as required by the Rules of Court. This Department has approximately 500 active cases (in addition to CEQA matters) and is presented with thousands of pages each week; font sizes take on added significance in this context.

The Court declines to treat the motion as one solely for summary adjudication as to the second cause of action for declaratory relief.

Motion is denied without prejudice.

If Plaintiff revises and renews the motion, it is to serve and file a completely self- contained renewed motion, i.e., it is not to require the Court to locate any previously- filed documents.

MANDATORY SETTLEMENT CONFERENCE AND TRIAL MATTERS

Final Status Conference is re-set in this department from October 17, to October 24, 2014 at 9:00 a.m.

Trial was previously continued; it will commence in this department on November 3, 2014, at 9:30 a.m.

By the 60th day prior to the date of the FSC date, the parties shall have had a mandatory settlement conference with one of the MSC judges in this courthouse. ALL parties and all persons appropriate to resolve the matter shall be present in person (e.g., not “available” by telephone). Counsel or self-represented parties are to arrange for the MSC according to the instructions available from the court staff. Counsel should schedule the MSC well in advance so that they can be assured of compliance with these orders. The parties will not be allowed to try the case without compliance with each of these orders.

The parties are reminded of their obligation, and the court orders, that they comply with LASC Rules 3.25 (f), (g) and (h) [formerly (h), (i) and (j)] in preparing for trial. Guides for preparation are available from the court staff.

Failure to fully comply with the foregoing Rule and Order and any other orders the Court makes with respect to this case will result in rescheduling the FSC and trial dates, as well as the potential of monetary sanctions for violation of the order to so comply. CCP 177.5.

These orders are made both because they will assist the parties in preparing for trial, or in resolving the case without trial, and because lack of pre-trial preparation results in a waste of increasingly limited public resources.

NOTICE

Plaintiff shall give notice of today’s rulings and orders and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.