Case Name: Minoo Shayesteh v. Nagin Welch, et al.
Case No.: 2015-1-CV-282358

This action arises from a dispute between plaintiff Minoo Shayesteh (“Plaintiff”) and her sister, defendant Nagin Welch (“Defendant”), concerning real property in Santa Clara. Plaintiff’s original and still operative Complaint originally stated 12 causes of action: (1) quiet title, (2) abuse of process, (3) malicious prosecution, (4) deed procured by undue influence – confidential relationship, (5) constructive trust and related claims, (6) intentional infliction of emotional distress, (7) breach of contract, (8) breach of contract – third party beneficiary, (9) common counts, (10) tortious assault, (11) premises liability, and (12) fraud. In September 2015 a demurrer was sustained with leave to amend as to the first, second, fourth, eighth, and eleventh causes of action, but no amendment was made within the time permitted. In July 2016 the third cause of action was eliminated through a motion for judgment on the pleadings. Currently before the Court is Defendant’s motion for summary adjudication of the fifth (constructive trust), seventh (breach of contract), ninth (common counts), and twelfth (fraud) causes of action.

On a motion for summary judgment or adjudication the moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 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. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) Another way for a defendant to obtain summary judgment is to “show” that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff does not possess and cannot reasonably obtain needed evidence.

Defendant’s motion for summary adjudication is DENIED as to all four causes of action for failure to meet the initial burden. The sole basis for Defendant’s motion is that all four of the targeted claims fail because Plaintiff does not have evidence to support her allegation that she gave Defendant $100,000. (See Defendant’s Notice of Motion.) The only evidence submitted by Defendant in support of the motion is a declaration from Defense Counsel Edward McDonald, and the only substantive statement made in that declaration (at 2) is that “[a]fter a review of the pleadings, files and records, including discovery, I have determined there is an absence of evidence establishing plaintiff Minoo Shayesteh paid $100,000 to defendant Nagin Welch.”

This is not enough to meet Defendant’s initial burden to establish that Plaintiff lacks evidence to support her allegation that she gave Defendant $100,000. “Summary judgment law in this state . . . continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’” (Aguilar, supra, 25 Cal.4th at pp. 854-855. See also Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) A defendant moving for summary judgment or adjudication on the basis of a lack of evidence will usually submit the plaintiff’s responses to comprehensive discovery to establish the claimed lack of evidence. Here, while Defendant’s motion makes reference to “almost two years of discovery” none of this discovery is described, let alone submitted as evidence in support of the motion. Even when a defendant moving for summary judgment or adjudication on a lack of evidence theory does submit a plaintiff’s factually-devoid responses to comprehensive discovery, the initial burden is not met by producing discovery responses that do not exclude the possibility that opposing parties may possesses or may reasonably obtain evidence sufficient to establish their claim. (See Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442 [“A motion for summary judgment is not a mechanism for rewarding limited discovery; it is a mechanism allowing the early disposition of cases where there is no reason to believe that a party will be able to prove its case.”)

Here, even if the McDonald declaration could reasonably be construed as establishing that Plaintiff had no evidence to support her allegation that she paid Defendant $100,000 at the time the declaration was filed in June 2017, the declaration does not address or establish that there is no reasonable possibility of Plaintiff obtaining sufficient evidence to support her allegation, and so the motion would still fail to meet the initial burden. Because the motion fails to meet the initial burden, the burden of persuasion never shifts to Plaintiff, and it is unnecessary for the Court to consider Plaintiff’s opposition or the attached evidence, none of which is authenticated.