34-2017-216744

Golden State Fire Support, Inc. vs. Jason Alexander

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Alexander, Jason

In pro per defendant Alexander’s motion for summary judgment or alternatively, for summary adjudication of issues is DENIED as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendant’s 24 Undisputed Material Facts and/or plaintiff’s 7 Additional Material Facts will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06, and does not provide the correct address for Dept. 53/54. Moving defendant is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the court’s tentative ruling procedure and the manner to request a hearing, along with the correct address for Dept. 53/54. If moving defendant is unable to contact opposing counsel prior to hearing, moving defendant is ordered to appear at the hearing in person or by telephone.

Moving defendant failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when evidence exceeds 25 pages.

Moving defendant failed comply with CRC Rule 3.1350(b) and (h), requiring that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement.

Moving defendant failed comply with CRC Rule 3.1113(f), requiring that a memorandum of points & authorities in excess of 10 pages include a table of contents and a table of authorities.

Factual Background

This is an action by a closely-held corporation, Golden State Fire Support, Inc. (“GSFS”), against a shareholder who was also formerly an employee of the corporation. The complaint purports to assert two causes of action, the first of which is for conversion of a nearly $82,000 check payable to GSFS, some magnetic signs with the company’s logo and “PPE” (this term is not defined in the complaint but appears to

refer to “personal protective equipment”) without the authorization of GSFS. The second cause of action is for injunctive relief (although this is not an independent cause of action but merely a remedy available under certain circumstances).

Moving Papers. Defendant in pro per now moves for summary adjudication of four issues on the following grounds:

(1) Plaintiff GSFS cannot demonstrate defendant’s disposition of corporate property was inconsistent with GSFS’s property rights, citing undisputed material fact (“UMF”) Nos. 1-11;

(2) Plaintiff cannot prove it suffered damages as a result of the alleged conversion, relying on UMF Nos. 12-16;

(3) Plaintiff’s claims regarding the “magnetic logos” are “invalid” because another shareholder of GSFS ‘stole them back,’ offering UMF Nos. 17-18; and
(4) Plaintiff’s claims regarding the PPE are “estopped from being asserted” because there were previously asserted in a small claims action which was dismissed with prejudice, citing UMF Nos. 19-24.

The court notes that virtually all of these UMF are based on defendant Alexander’s own declaration and/or the exhibits attached thereto.

Opposition. Plaintiff opposes the motion, arguing that there is a dispute over whether defendant Alexander had the authority to divert the $82,000 check payable to GSFS, whether he refused to return the company’s magnetic logos and whether GSFS suffered damages as a result of defendant’s conduct. The opposition also contends that a number of defendant’s 24 UMF are “disputed” and plaintiff GSFS includes seven

(7) Additional Material Facts (“AMF”) claimed to create triable issues of fact precluding summary judgment/adjudication.

Objections to Evidence

Neither side (timely) filed any written objections to evidence in conformity with CRC Rule 3.1354, which inter alia requires such objections to be set forth in a separate document and both cite the page and line numbers of the objectionable material and quote the objectionable material.

To the extent plaintiff’s responses to defendant’s UMF Nos. 9 and 10 purport to assert objections to these UMF themselves, such objections must be overruled because objections are properly directed at evidence only. (See, CRC Rules 3.1352, 3.1354.)

Analysis

At the outset, the court must deny summary adjudication of the third and fourth issues relating to the claim for the “magnetic logos” which were ‘stolen back’ and the claim for the PPE which were previously asserted in a small claims action before being dismissed with prejudice, respectively, since these issues, as framed, are not amenable to summary adjudication pursuant to the express language of Code of Civil Procedure §437c(f)(1). This subdivision provides in its entirety:

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 [punitive] 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 [punitive] damages, or an issue of duty.” (Emphasis added.)

In short, even if plaintiff were unable to prove its claim relating to the “magnetic logos” and/or the PPE on the specific grounds advanced in this motion, defendant would not be entitled to summary adjudication since neither of these claims could completely dispose of the entirety of the conversion cause of action alleged in the complaint. Accordingly, the final sentence of §437c(f)(1) mandates that summary adjudication be denied as to defendant’s third and fourth issues relating to the “magnetic logos” and the PPE.

Moreover, even if it were assumed that the moving papers were sufficient to satisfy defendant’s initial burden of production under Code of Civil Procedure §437c(p)(2) with respect to each of the four issues posed for summary adjudication and thereby successfully shifted the burden to plaintiff, the court finds the opposition has met its burden of producing evidence which demonstrates the existence of several triable issues of material fact which preclude summary adjudication in favor of defendant. This conclusion is reinforced by the rule requiring that the evidence offered in opposition to a motion for summary judgment/adjudication be construed liberally while the evidence in support of the motion is 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.)

Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a 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. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).) In particular, the opposition has cited a variety of evidence which, when construed liberally is sufficient to create a triable dispute of material fact in connection with UMF Nos. 4-6, 8-11, 18 and 23.

Finally, the seven (7) AMF advanced by plaintiff in the opposition are also sufficient to create additional triable issues of fact relative to the questions of whether (1) whether defendant Alexander had the authority to divert the $82,000 check payable to GSFS,

(2) whether he refused to return the company’s magnetic logos and (3) whether GSFS suffered damages as a result of defendant’s conduct. For this reason as well, summary adjudication must be denied.

Conclusion

For the reasons explained above, defendant’s motion for summary adjudication must be and hereby is denied as to all four of the issues presented in the moving papers. Since summary adjudication has been denied, defendant’s alternative motion for summary judgment must also be denied.