Mark Montgomery vs. JTS Communities Inc

2010-00073633-CU-OR

Nature of Proceeding: Motion for Summary Adjudication (Motion no 1)

Filed By: Peterson, Glenn W.

*** 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 Issues identified in the
Master Statement of Undisputed Material Facts” and which of the Undisputed
Material Facts offered by the moving defendants 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 JTS Communities, Inc. (“JTS”), Jack T. Sweigart, Rob Aragon, Ray
Melville, Mike Carson, Bob Payne, William L. Greer and W.M. Greer & Co.’s
(collectively “Defendants”) motion for summary adjudication of Plaintiff The Ranch at
Clay Station Homeowners’ Association’s (the “Association”) first, third, fourth, fifth and
sixth causes of action is DENIED as follows.

The Court notes that this motion for summary adjudication is the first of three filed by
Defendants against different categories of plaintiffs. The second motion is against the
Direct Purchaser Plaintiffs, and the third motion is against the Indirect Purchase
Plaintiffs. This motion is solely against the Association.

The Court notes that Defendants filed a “Master Statement of Undisputed Material
Facts” (“Master Statement”) which combines the undisputed material facts for all three
motions and all plaintiffs. Thus, the presence of a single triable issue of material fact
per issue mandates denial of summary adjudication regardless of whether the issue
applies to one or all of the plaintiffs. (See, Homestead Savings v. Superior Court
(Dividend Devel. Corp.) (1986) 179 Cal.App.3d 494, 498; Weil & Brown, Civil
Procedure Before Trial, Ch.10:88 et seq.) Defendants are admonished for failing to
repeat the issues in the Notices of Motion verbatim in the Master Statement as
required by CRC 3.1350. The numbering of the issues in the Notices of Motion does
not match the numbering of the issues in the Master Statement. Moreover, the Notice
of Motion include 12 Issues, while the Master Statement includes 16 Issues. Lastly,
the Court notes that Issues 4, 7, 11, and 14 in the Master Statement which deal with
the Association’s standing as to the third, fourth, fifth, and sixth causes of action are
not included in any of the Notices of Motion. Accordingly, the Court will not rule on
Issues 4, 7, 11, and 14.

This litigation arises out plaintiffs’ purchase of homes developed and sold (at least
initially) by JTS. Plaintiffs claim that JTS and its agents effectively misrepresented that
400 acres of land (the “Remainder Parcel”) had been set aside for open space and
riding trails, thereby influencing plaintiffs’ decision to purchase their homes.
Defendants argue that only 209 acres of the Remainder Parcel were set aside for the
Association and the homeowners.

Defendants move for summary adjudication on the following causes of action:
Declaratory Relief (COA 1), Intentional Misrepresentation (COA 2), Negligent
Misrepresentation (COA 3), Unfair Competition (COA 5), and False Advertising (COA
6).

Defendants’ objections to evidence are ruled upon as follows:

Sustained: 1

Overruled: 2, 3

Declaratory Relief

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) Plaintiffs lack standing [Issue 1], (2) Plaintiffs cannot establish a triable
issue of material fact as to the existence of an actual controversy concerning the Entire Remainder Parcel [Issue 2], and (3) Plaintiffs’ claims are barred by the Statute of
Frauds [Issue 3]. As noted above, the Court will not consider Issue 4 as it was not
raised in the notice of motion.

Defendants’ separate statement includes the following fact: “The HOA did not incur
any expenses to maintain any part of the Remainder Parcel other than the Common
Area between 2004-2009.” (Defendants’ Separate Statement, UMF 8 [Issue 1], 20
[Issue 2], 32 [Issue 3].) The HOA responds as follows which is supported by the
evidence: “Former HOA Board of Director member Brian Dillon, who served on the
Board from July 2005 to June 2006, has testified that the HOA paid for expenses to
maintain the entire 400 Remainder Parcel.” (See Plaintiffs’ Rebuttal to Defendants’
Separate Statement, UMF 8 [Issue 1], 20 [Issue 2], 32 [Issue 3].)

Plaintiffs have satisfied their burden to demonstrate a triable issue of material fact.
Accordingly, the motion for summary adjudication is DENIED.

Unfair Competition

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) no reasonable consumer could have relied on the alleged oral
representations to the exclusion of the terms, provisions and disclosures provided to
and relied upon by each homeowner in connection with their home purchase [Issue 5],
and (2) Plaintiffs sustained no injury in fact or damages [Issue 6]. As noted above, the
Court will not consider Issue 7 as it was not raised in the notice of motion.

With respect to Issue 6, Defendant’s separate statement includes the following fact:
“The Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on
or about August 16, 2007 . . . The HOA Board of Directors considered and analyzed
the proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’” (Defendants’ Separate Statement, UMF 82 [Issue 6].) The HOA
responds as follows which is supported by the evidence: “Contrary to the assertion
that the HOA came to a mutual agreement with Defendant to rescind the Remainder
Land offer, is a November 14, 2007 email in which Rachel Corona communicates . . .
that the offer of the Remainder Land is being withdrawn and that a letter to Jack
should be written for an extension of time. No letter asking for an extension of time
has been produced throughout this litigation. It is Plaintiffs’ contention that the offer of
the Remainder Land was withdrawn by JTS Communities, Inc.” (See Plaintiffs’
Rebuttal to Defendants’ Separate Statement, UMF 82 [Issue 6].) Viewing the facts in
the light most favorable to the HOA, the Court finds that the HOA has demonstrated a
triable issue of material fact as to Issue 6. Accordingly, the motion for summary
adjudication is DENIED.

False Advertising Defendants move for summary adjudication on this cause of action on the following
grounds: (1) no reasonable consumer could have relied on the alleged oral
representations to the exclusion of the terms, provisions and disclosures provided to
and relied upon by each homeowner in connection with their home purchase [Issue 8],
(2) Plaintiffs sustained no injury in fact [Issue 9], and the alleged oral statement were
not publicly disseminated [Issue 10]. As noted above, the Court will not consider Issue
11 as it was not raised in the notice of motion.

Issue 8 relies on the same fact in the Declaratory Relief cause of action -“The HOA did
not incur any expenses to maintain any part of the Remainder Parcel other than the
Common Area between 2004-2009.” Because the Court has found that the HOA has
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 9 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that the HOA has demonstrated a
triable issue as to this material fact, the motion for summary adjudication is DENIED.

With respect to Issue 10 that the alleged oral statement were not publicly
disseminated, the motion for summary adjudication is DENIED. Defendants’ separate
statement includes the following fact: “Each of the homeowner plaintiffs allege that it
was orally represented to them by Ranch sales agents that the entire Remainder
Parcel was for the permanent and exclusive use and enjoyment of the homeowners at
the Ranch and that such statements were false/misleading.” (Defendants’ Separate
Statement, UMF 130 [Issue 10].) The HOA responds as follows which is supported by
the evidence: “The allegedly false/fraudulent representations were disseminated to
the general public by JTS Communities, Inc. and its agents, not just to homeowner
plaintiffs. The dissemination occurred through a marketing video that ran on
continuous playback in the sales office and a web-page that was available on-line.
JTS Communities, Inc. and its agents, in person, made allegedly false representations
directly to other members of the public.” (See Plaintiffs’ Rebuttal to Defendants’
Separate Statement, UMF 130 [Issue 10].) Plaintiffs have satisfied their burden to
demonstrate a triable issue of material fact as to Issue 10. Accordingly, the motion for
summary adjudication is DENIED.

Intentional Misrepresentation

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) Plaintiffs could not have reasonably relied upon the alleged oral
representations regarding the Remainder Parcel [Issue 12], and (2) Plaintiffs have not
sustained injury in fact or damages [Issue 13]. As noted above, the Court will not
consider Issue 14 as it was not raised in the notice of motion.

Issue 12 relies on the same fact in the Declaratory Relief cause of action -“The HOA
did not incur any expenses to maintain any part of the Remainder Parcel other than
the Common Area between 2004-2009.” Because the Court has found that the HOA
has demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 13 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that the HOA has demonstrated a
triable issue as to this material fact, the motion for summary adjudication is DENIED.

Negligent Misrepresentation

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) Plaintiffs cannot establish reasonable reliance [Issue 15], and (2) Plaintiffs
have not sustained injury in fact or damages [Issue 16].

Issue 15 relies on the same fact in the Declaratory Relief cause of action -“The HOA
did not incur any expenses to maintain any part of the Remainder Parcel other than
the Common Area between 2004-2009.” Because the Court has found that the HOA
has demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 16 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that the HOA has demonstrated a
triable issue as to this material fact, the motion for summary adjudication is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 3 2010-00073633-CU-OR

Mark Montgomery vs. JTS Communities Inc

Nature of Proceeding: Motion for Summary Adjudication (Motion no 2 and Joinder)

Filed By: Peterson, Glenn W.

Defendants JTS Communities, Inc. (“JTS”), Jack T. Sweigart, Rob Aragon, Ray Melville, Mike Carson, Bob Payne, William L. Greer and W.M. Greer & Co.’s
(collectively “Defendants”) motion for summary adjudication of Plaintiffs Brian Dillon,
Ashok Kapur, Anita Kapur, Bennie Osburn, Cassie Dinh, Van Truong, Mark
Montgomery, Mark Waddell, Brett Kernan, Jackie Kernen, Ole Christensen, Alen Glen,
La Donna White, Ross Dibble, Joyce Dibble, Ken Huffman, Kathy Huffman, Rod
Hoover, Ingrid Hoover, Michael Day, Sandra Day, Juanito Madamba, Michael Sypolt
and Yu Chau Hon’s (collectively “Plaintiffs”) first, third, fourth, fifth and sixth causes of
action is DENIED as follows.

The Court notes that this motion for summary adjudication is the second of three filed
by Defendants against different categories of plaintiffs. The first motion is against the
Ranch at Clay Station Homeowners’ Association (the “Association”), and the third
motion is against the Indirect Purchase Plaintiffs. This motion is solely against the
Plaintiffs, who purchased their homes directly from Defendants.

Defendants are admonished for filing a memorandum of points and authorities in
excess of the 20 page limit without prior court approval. (CRC 3.1113(d), (e).)

Defendant The Advantage Group’s joinder is DENIED. In order to be proper, the
joinder must satisfy all the procedural requirements for summary
judgment/adjudication motions. Here, the joinder does not contain its own separate
statement. However, this does not change the outcome here as the Court has denied
Defendants’ motion for summary adjudication.

Defendants move for summary adjudication on the following causes of action:
Declaratory Relief (COA 1), Intentional Misrepresentation (COA 3), Negligent
Misrepresentation (COA 4), Unfair Competition (COA 5), and False Advertising (COA
6). Defendants’ objections to evidence are ruled upon as follows:

Sustained: 1

Overruled: 2, 3

Declaratory Relief

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) Plaintiffs lack standing [Issue 1], (2) Plaintiffs cannot establish a triable
issue of material fact as to the existence of an actual controversy concerning the Entire
Remainder Parcel [Issue 2], and (3) Plaintiffs’ claims are barred by the Statute of
Frauds [Issue 3]. As noted above, the Court will not consider Issue 4 as it was not
raised in the notice of motion.

Defendants’ separate statement includes the following fact: “The HOA did not incur
any expenses to maintain any part of the Remainder Parcel other than the Common
Area between 2004-2009.” (Defendants’ Separate Statement, UMF 8 [Issue 1], 20
[Issue 2], 32 [Issue 3].) Plaintiff responds as follows which is supported by the
evidence: “Former HOA Board of Director member Brian Dillon, who served on the
Board from July 2005 to June 2006, has testified that the HOA paid for expenses to
maintain the entire 400 Remainder Parcel.” (See Plaintiffs’ Rebuttal to Defendants’
Separate Statement, UMF 8 [Issue 1], 20 [Issue 2], 32 [Issue 3].)

Plaintiffs have satisfied their burden to demonstrate a triable issue of material fact.
Accordingly, the motion for summary adjudication is DENIED.

Unfair Competition

With respect to Issue 6, Defendant’s separate statement includes the following fact:
“The Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on
or about August 16, 2007 . . . The HOA Board of Directors considered and analyzed
the proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’” (Defendants’ Separate Statement, UMF 82 [Issue 6].) Plaintiffs
respond as follows which is supported by the evidence: “Contrary to the assertion that
the HOA came to a mutual agreement with Defendant to rescind the Remainder Land
offer, is a November 14, 2007 email in which Rachel Corona communicates . . . that
the offer of the Remainder Land is being withdrawn and that a letter to Jack should be
written for an extension of time. No letter asking for an extension of time has been
produced throughout this litigation. It is Plaintiffs’ contention that the offer of the
Remainder Land was withdrawn by JTS Communities, Inc.” (See Plaintiffs’ Rebuttal to
Defendants’ Separate Statement, UMF 82 [Issue 6].) Viewing the facts in the light
most favorable to Plaintiffs, the Court finds that Plaintiffs have demonstrated a triable
issue of material fact as to Issue 6. Accordingly, the motion for summary adjudication
is DENIED.

False Advertising

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) no reasonable consumer could have relied on the alleged oral
representations to the exclusion of the terms, provisions and disclosures provided to
and relied upon by each homeowner in connection with their home purchase [Issue 8],
(2) Plaintiffs sustained no injury in fact [Issue 9], and the alleged oral statement were
not publicly disseminated [Issue 10]. As noted above, the Court will not consider Issue
11 as it was not raised in the notice of motion.

Issue 8 relies on the same fact in the Declaratory Relief cause of action -“The HOA did
not incur any expenses to maintain any part of the Remainder Parcel other than the
Common Area between 2004-2009.” Because the Court has found that Plaintiffs
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 9 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that Plaintiffs demonstrated a triable
issue as to this material fact, the motion for summary adjudication is DENIED.

With respect to Issue 10 that the alleged oral statement were not publicly
disseminated, the motion for summary adjudication is DENIED. Defendants’ separate
statement includes the following fact: “Each of the homeowner plaintiffs allege that it
was orally represented to them by Ranch sales agents that the entire Remainder
Parcel was for the permanent and exclusive use and enjoyment of the homeowners at
the Ranch and that such statements were false/misleading.” (Defendants’ Separate
Statement, UMF 130 [Issue 10].) Plaintiffs respond as follows which is supported by
the evidence: “The allegedly false/fraudulent representations were disseminated to
the general public by JTS Communities, Inc. and its agents, not just to homeowner
plaintiffs. The dissemination occurred through a marketing video that ran on
continuous playback in the sales office and a web-page that was available on-line.
JTS Communities, Inc. and its agents, in person, made allegedly false representations
directly to other members of the public.” (See Plaintiffs’ Rebuttal to Defendants’
Separate Statement, UMF 130 [Issue 10].) Plaintiffs have satisfied their burden to
demonstrate a triable issue of material fact as to Issue 10. Accordingly, the motion for
summary adjudication is DENIED.

Intentional Misrepresentation
Defendants move for summary adjudication on this cause of action on the following
grounds: (1) Plaintiffs could not have reasonably relied upon the alleged oral
representations regarding the Remainder Parcel [Issue 12], and (2) Plaintiffs have not
sustained injury in fact or damages [Issue 13]. As noted above, the Court will not
consider Issue 14 as it was not raised in the notice of motion.

Issue 12 relies on the same fact in the Declaratory Relief cause of action -“The HOA
did not incur any expenses to maintain any part of the Remainder Parcel other than
the Common Area between 2004-2009.” Because the Court has found that Plaintiffs
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 13 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that Plaintiffs demonstrated a triable
issue as to this material fact, the motion for summary adjudication is DENIED

Negligent Misrepresentation

Issue 15 relies on the same fact in the Declaratory Relief cause of action -“The HOA
did not incur any expenses to maintain any part of the Remainder Parcel other than
the Common Area between 2004-2009.” Because the Court has found that Plaintiffs
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 16 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that Plaintiffs demonstrated a triable
issue as to this material fact, the motion for summary adjudication is DENIED

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 4 2010-00073633-CU-OR

Mark Montgomery vs. JTS Communities Inc

Nature of Proceeding: Motion for Summary Adjudication (Motion no 3 and Joinder by

Filed By: Peterson, Glenn W. Filed By: Peterson, Glenn W.

Defendants JTS Communities, Inc. (“JTS”), Jack T. Sweigart, Rob Aragon, Ray
Melville, Mike Carson, Bob Payne, William L. Greer and W.M. Greer & Co.’s
(collectively “Defendants”) motion for summary adjudication of the first, third, fourth,
fifth and sixth causes of action asserted by plaintiffs Nael Dennaoui, Mirka Dennaoui,
Don Biava, Shauna Biava, Jim Brennan, Melody Cecil, Justin Cecil, Christine Gessell,
Robert Jermain, Willie W. Haidari, Clinton Chrisman, David Williams, Francis Holleran,
Josh Magdaleno and Darcie Magdaleno (collectively “Plaintiffs”) is DENIED as follows.

The Court notes that this motion for summary adjudication is the third of three filed by
Defendants against different categories of plaintiffs. The first motion is directed at
claims asserted by the Ranch at Clay Station Homeowners’ Association (the
“Association”) and the second motion is directed at claims asserted by the various
plaintiffs who purchased their homes directly from Defendants. This third motion is
directed at claims asserted by those plaintiffs who did not purchase their homes
directly from Defendants but rather from other private parties. This latter group of
plaintiffs is described by Defendants as the “Indirect Purchasers.”

Defendants are admonished for filing a memorandum of points and authorities in
excess of the 20 page limit without prior court approval. (CRC 3.1113(d), (e).)

The Court notes that Defendants filed a “Master Statement of Undisputed Material
Facts” (“Master Statement”) which combines the undisputed material facts for all three
motions and all plaintiffs. Thus, the presence of a single triable issue of material fact
per issue mandates denial of summary adjudication regardless of whether the issue
applies to one or all of the plaintiffs. (See, Homestead Savings v. Superior Court
(Dividend Devel. Corp.) (1986) 179 Cal.App.3d 494, 498; Weil & Brown, Civil
Procedure Before Trial, Ch.10:88 et seq.) Defendants are admonished for failing to
repeat the issues in the Notices of Motion verbatim in the Master Statement as
required by CRC 3.1350. The numbering of the issues in the Notices of Motion does
not match the numbering of the issues in the Master Statement. Moreover, the Notice
of Motion include 12 Issues, while the Master Statement includes 16 Issues. Lastly,
the Court notes that Issues 4, 7, 11 and 14 in the Master Statement which deal with
the Association’s standing as to the third, fourth, fifth, and sixth causes of action are
not included in any of the Notices of Motion. Accordingly, the Court will not rule on
Issues 4, 7, 11 and 14. This litigation arises out plaintiffs’ purchase of homes developed and sold (at least
initially) by JTS. Plaintiffs claim that JTS and its agents effectively misrepresented that
400 acres of land (the “Remainder Parcel”) had been set aside for open space and
riding trails, thereby influencing plaintiffs’ decision to purchase their homes.
Defendants argue that only 209 acres of the Remainder Parcel were set aside for the
Association and the homeowners.

Defendants’ objections to evidence are ruled upon as follows:

Sustained: 1
Overruled: 2, 3

Declaratory Relief

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) Plaintiffs lack standing [Issue 1], (2) Plaintiffs cannot establish a triable
issue of material fact as to the existence of an actual controversy concerning the entire
Remainder Parcel [Issue 2], and (3) Plaintiffs’ claims are barred by the Statute of
Frauds [Issue 3]. As noted above, the Court will not consider Issue 4 as it was not
raised in the notice of motion.

Defendants’ separate statement includes the following fact: “The HOA did not incur
any expenses to maintain any part of the Remainder Parcel other than the Common
Area between 2004-2009.” (Defendants’ Separate Statement, UMF 8 [Issue 1], 20
[Issue 2], 32 [Issue 3].) Plaintiff responds as follows which is supported by the
evidence: “Former HOA Board of Director member Brian Dillon, who served on the
Board from July 2005 to June 2006, has testified that the HOA paid for expenses to
maintain the entire 400 Remainder Parcel.” (See Plaintiffs’ Rebuttal to Defendants’
Separate Statement, UMF 8 [Issue 1], 20 [Issue 2], 32 [Issue 3].)

Plaintiffs have satisfied their burden of demonstrating a triable issue of material fact.
Accordingly, the motion for summary adjudication of this cause of action is DENIED.

Unfair Competition

Issue 5 relies on the same fact in the Declaratory Relief cause of action -“The HOA did
not incur any expenses to maintain any part of the Remainder Parcel other than the
Common Area between 2004-2009.” Because the Court has found that Plaintiffs
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED. With respect to Issue 6, Defendant’s separate statement includes the following fact:
“The Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on
or about August 16, 2007 . . . The HOA Board of Directors considered and analyzed
the proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’” (Defendants’ Separate Statement, UMF 82 [Issue 6].) Plaintiffs
respond as follows which is supported by the evidence: “Contrary to the assertion that
the HOA came to a mutual agreement with Defendant to rescind the Remainder Land
offer, is a November 14, 2007 email in which Rachel Corona communicates . . . that
the offer of the Remainder Land is being withdrawn and that a letter to Jack should be
written for an extension of time. No letter asking for an extension of time has been
produced throughout this litigation. It is Plaintiffs’ contention that the offer of the
Remainder Land was withdrawn by JTS Communities, Inc.” (See Plaintiffs’ Rebuttal to
Defendants’ Separate Statement, UMF 82 [Issue 6].) Viewing the facts in the light
most favorable to Plaintiffs, the Court finds that Plaintiffs have demonstrated a triable
issue of material fact as to Issue 6. Accordingly, the motion for summary adjudication
is DENIED as to the unfair competition claim.

False Advertising

Defendants move for summary adjudication on this cause of action on the following
grounds: (1) no reasonable consumer could have relied on the alleged oral
representations to the exclusion of the terms, provisions and disclosures provided to
and relied upon by each homeowner in connection with their home purchase [Issue 8],
(2) Plaintiffs sustained no injury in fact [Issue 9], and the alleged oral statement were
not publicly disseminated [Issue 10]. As noted above, the Court will not consider Issue
11 as it was not raised in the notice of motion.

Issue 8 relies on the same fact in the Declaratory Relief cause of action -“The HOA did
not incur any expenses to maintain any part of the Remainder Parcel other than the
Common Area between 2004-2009.” Because the Court has found that Plaintiffs
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 9 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that Plaintiffs demonstrated a triable
issue as to this material fact, the motion for summary adjudication is DENIED.

With respect to Issue 10 that the alleged oral statement were not publicly
disseminated, the motion for summary adjudication is DENIED. Defendants’ separate
statement includes the following fact: “Each of the homeowner plaintiffs allege that it
was orally represented to them by Ranch sales agents that the entire Remainder
Parcel was for the permanent and exclusive use and enjoyment of the homeowners at
the Ranch and that such statements were false/misleading.” (Defendants’ Separate
Statement, UMF 130 [Issue 10].) Plaintiffs respond as follows which is supported by
the evidence: “The allegedly false/fraudulent representations were disseminated to
the general public by JTS Communities, Inc. and its agents, not just to homeowner
plaintiffs. The dissemination occurred through a marketing video that ran on
continuous playback in the sales office and a web-page that was available on-line.
JTS Communities, Inc. and its agents, in person, made allegedly false representations
directly to other members of the public.” (See Plaintiffs’ Rebuttal to Defendants’
Separate Statement, UMF 130 [Issue 10].) Plaintiffs have satisfied their burden to
demonstrate a triable issue of material fact as to Issue 10. Accordingly, the motion for
summary adjudication of the false advertising claim is also DENIED.

Intentional Misrepresentation

Issue 12 relies on the same fact in the Declaratory Relief cause of action -“The HOA
did not incur any expenses to maintain any part of the Remainder Parcel other than
the Common Area between 2004-2009.” Because the Court has found that Plaintiffs
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 13 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that Plaintiffs demonstrated a triable
issue as to this material fact, the motion for summary adjudication is DENIED as to the
intentional misrepresentation cause of action.

Negligent Misrepresentation

Issue 15 relies on the same fact in the Declaratory Relief cause of action -“The HOA
did not incur any expenses to maintain any part of the Remainder Parcel other than
the Common Area between 2004-2009.” Because the Court has found that Plaintiffs
demonstrated a triable issue as to this material fact, the motion for summary
adjudication is DENIED.

Issue 16 relies on the same fact in the Unfair Competition cause of action -“The
Remainder Parcel was offered to be annexed to the Ranch HOA by Defendant on or
about August 16, 2007 . . . The HOA Board of Directors considered and analyzed the
proposal, but determined it was not in the community’s best interest to accept. A
January 2008 Management Report put out by the HOA’s management company . . .
stated the following: . . . ‘By mutual agreement the offer for the Remainder Parcel has
been rescinded.’ Because the Court has found that Plaintiffs demonstrated a triable
issue as to this material fact, the motion for summary adjudication of the negligent
misrepresentation cause of action is DENIED as well.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 5 2010-00073633-CU-OR

Mark Montgomery vs. JTS Communities Inc

Nature of Proceeding: Motion for Summary Adjudication (The Advantage Group)

Filed By: Jones, Shannon B.

*** 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 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 The Advantage Group, et al.’s motion for summary for summary
adjudication of 56 separate issues (relating to the various causes of action by each of
the remaining plaintiffs) is GRANTED in part and DENIED in part, as follows.

Plaintiffs’ counsel is admonished for failing to comply with CRC Rule 3.1116(c),
relating to the use of deposition testimony as exhibits.

This litigation arises out plaintiffs’ purchase of homes developed and sold (at least
initially) by JTS Communities, Inc. (“JTS”). Plaintiffs claim that JTS and its agents
effectively misrepresented that 400 acres of land (the “Remainder Parcel”) had been
set aside for open space and riding trails, thereby influencing plaintiffs’ decision to
purchase their homes. It is alleged that moving defendants here, The Advantage
Group, et al., acted as JTS’ agents and are liable at least in part for plaintiffs’
damages.

Moving defendants now seek summary adjudication of several causes of action
alleged by the remaining plaintiffs in this action on the grounds that there are no triable
issues of material fact as to those causes of action and that moving defendants are
entitled to judgment as a matter of law. In support of their motion, moving defendants
offer a total of 35 UMF.

Plaintiffs oppose the motion arguing first that defendants failed to produce admissible
evidence to support several of their 35 UMF. The opposition also asserts that a
number of the UMF are in dispute, thereby precluding summary adjudication.
However, plaintiffs did not offer any Additional Material Facts (“AMF”) of their own in
an attempt to show a triable issue of material fact.

At the outset, the Court notes that after plaintiffs filed their opposition to this motion,
defendants filed on 5/2/2014 a supplemental separate statement of Undisputed
Material Facts (“UMF”) which not only modifies at least one UMF but also cites in
support of several UMF “new” evidence which was obtained after the original moving
papers were filed. The Court declines to consider both the supplemental separate statement of UMF and the “new” evidence cited therein since plaintiffs did not have an
opportunity to respond to either and since the moving defendants failed to demonstrate
that “new” evidence could not with reasonable diligence have been submitted in
connection with the original moving papers.

Objections to Evidence

Plaintiffs’ written objections to defendants’ evidence and request for judicial notice are
overruled.

Defendants filed no written objections to evidence.

Defendants’ Initial Burden of Production

Under Code of Civil Procedure §437c(p)(2), moving defendants bear the initial burden
to produce admissible evidence which demonstrates that plaintiffs cannot prove one or
more prima facie elements of their asserted causes of action or there is a complete
defense thereto such that moving defendants are entitled to judgment as a matter of
law on those causes of action. Unless this initial burden is met, plaintiffs need not
produce any evidence purporting to show a triable issue of fact in order to defeat
summary adjudication here.

The Court holds that moving defendants have failed to carry their initial burden of
production with respect to Issue Nos. 2-5, 23-25, 31, 34, 37, 39, 41 and 43-55. Thus,
summary adjudication must be denied as to each of these issues regardless of
whether plaintiffs presented evidence which shows any triable issue of material fact.
Specifically, moving defendants failed to produce evidence to support UMF Nos. 8, 21,
28, 31 and 32 in their entirety especially since the evidence offered in support of this
motion must be 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.) Because
these five (5) UMF were cited by moving defendants as support for their motion for
summary adjudication as to Issue Nos. 2-5, 23-25, 31, 34, 37, 39, 41 and 43-55,
summary adjudication must as a matter of law be denied as to each of these 25
issues. (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].)

Plaintiffs’ Burden of Production

Where a defendant moving for summary judgment/adjudication has met its initial
burden of production under Code of Civil Procedure §437c(p)(2), the burden then
shifts to the plaintiff to produce admissible evidence which shows a triable issue of
material fact. In determining whether a triable issue exists, the evidence offered in
opposition to this motion must be construed liberally while the evidence in support is
construed narrowly. (See, e.g., DiLoreto, supra; Alvarez v. State of California, supra.)

In the present case, even if defendants had satisfied their initial burden of production in
connection with all 56 issues set forth in their notice of motion, this Court finds that
plaintiffs have carried their burden of producing admissible evidence sufficient to
demonstrate the existence of triable issues of material fact with respect to UMF Nos. 6,
8-9, 12, 14, 17, 19 and 31 particularly since plaintiffs’ evidence must be construed liberally. Since moving defendants cited these eight (8) UMF as support for summary
adjudication of Issue Nos. 1-28, 43-44, 46-47, 49-50, 52 and 54, the motion for
summary adjudication must be denied as to each of these 36 issues as a matter of
law. (See, Nazir, supra, at 252 [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].)

On the other hand, notwithstanding the liberal construction of the evidence in
opposition, plaintiffs failed to satisfy their burden of production with respect to Issue
Nos. 29-30, 32-33, 35-36, 38, 40, 42 and 56. The opposition either failed to cite any
evidence whatsoever in response to the specific UMF cited by moving defendants as
support for these issues and/or because the evidence actually cited in the opposition
does not show any triable issue of material fact in connection with the relevant UMF.
Since this Court finds that moving defendants otherwise did meet their initial burden of
production relative to these remaining 10 issues, the motion for summary adjudication
is granted as to Issue Nos. 29-30, 32-33, 35-36, 38, 40, 42 and 56.

Conclusion

In light of the foregoing, summary adjudication is hereby granted as to Issue Nos. 29-
30, 32-33, 35-36, 38, 40, 42 and 56 but is denied as to all other issues identified by
moving defendants in their notice of motion for summary adjudication.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, counsel for
moving defendants to prepare a formal order.

Link to this page

Copy the code below to your web site.

Legal News

Mark Montgomery vs. JTS Communities Inc

Leave a Reply