Case Name:   Ruihua “Rebecca” Yan v. William F. Garlock, et al.   

 

Case No.:       1-11-CV-208575

 

Motion for Summary Judgment by Defendant GD Commercial Real Estate, Inc. to the Complaint of Plaintiff Ruihua “Rebecca” Yan     

 

Evidence

 

Plaintiff’s request for judicial notice is GRANTED.  (See Evid. Code § 452, subd. (d); see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4^th 875, 882 [while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files].)

 

Plaintiff’s evidentiary objections are SUSTAINED IN PART and OVERRULED IN PART.  The court sustains objection nos. 1, 2, 3, 5, 6, 7, 9, and 13-22.  The court overrules objection nos. 4, 8, 10, 11, 12, and 23.

 

Motion for Summary Judgment

 

On September 2, 2011, Plaintiff filed a complaint against defendants alleging the following causes of action: (1) fraud and deceit; (2) negligent misrepresentation; (3) fraud by a fiduciary; and (4) breach of fiduciary duty.

 

On May 29, 2014, Defendant filed the motion presently before the court, a motion for summary judgment to the complaint.  (Code Civ. Proc. § 437c.)

 

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.  A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense.  Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’  ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’”  (Madden v. Summit View, Inc. (2008) 165 Cal.App.4^th 1267, 1272 [internal citations omitted].)

 

“A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action at issue cannot be established, or there is a complete defense to the cause of action.  The moving party bears the initial burden of making a prima facie showing of the nonexistence of a triable issue of material fact, and only if the moving party carries the initial burden does the burden shift to the opposing party to produce a prima facie showing of the existence of a triable issue of material fact.”  (Leek v. Cooper (2011) 194 Cal.App.4^th 399, 411 [internal citation omitted].)

 

“The pleadings play a key role in a summary judgment motion.  The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.”  (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4^th 486, 493 [citation omitted].)  The materiality of a disputed fact is measured by the pleadings which set the boundaries of the issues to be resolved at summary judgment.  (Ibid.)  Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint.  (Ibid.)

 

On summary judgment, Defendant argues that there is no evidence to support the claims in the complaint arising from actions that took place in 2007 and 2008 because the corporation did not come into existence until May 7, 2009.  (See Defendant’s Separate Statement of Undisputed Facts at Nos. 2, 3, 6, 7, 8, 10, 11, 15, 16, 17, 19, 20, 24, and 25.)  Since the corporation did not exist in 2007 and 2008, Defendant asserts that there is no basis for direct or vicarious liability under the complaint.  (Ibid.)

 

Here, the court finds that Defendant has not met its initial burden on summary judgment.  As a preliminary matter, Defendant includes the declaration of its counsel, James Kim, which identifies a total of 18 exhibits in support of the motion.  However, none of these exhibits are included with the moving papers filed with the court.  To the extent that such exhibits consist of Defendant’s own discovery responses, such evidence would be inadmissible on a summary judgment motion.  (See Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4^th 445, 450 [trial court did not abuse its discretion in sustaining plaintiff’s objection to defendant’s use of its own interrogatory responses as evidence supporting its statement of undisputed facts].)  The only other evidence submitted by Defendant is a declaration from defendant John Luk.  However, as the opposition points out, Defendant’s evidence fails to address misrepresentations by Luk contained in paragraph 24 of the complaint regarding a residential property in Mountain View which took place after 2008.  (See Plaintiff’s Disputed Fact at No. 5; Plaintiff’s Complaint at ¶ 24.)  Thus, having failed to address the allegations of paragraph 24, the court concludes, at a minimum, that triable issues of fact remain with respect to the fraud claims.  (See Gleason v. Klamer (1980) 103 Cal.App.3d 782 [appellate court reversed trial court’s order granting summary judgment because there was a single triable issue of fact].)

 

Accordingly, Defendant’s motion for summary judgment is DENIED.