2018-00225669-CU-BC

Kamar Singh vs. Josh Bottfeld Trust

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

Filed By: Banks, James J.

Defendants Josh Bottfeld as Trustee of the Josh Bottfeld Trust (erroneously sued as Josh Bottfeld Trust), Polycomp Trust Company as Custodian FBO Joanne K. Fratis IRA, Clairelee Leiser Bulkley as Successor Trustee of the Marya Welch Trust (erroneously sued as Marya Welch Trust), Yolanda Rose Ortega, Sharon F. Marks, Richard A. Ortiz as Trustee of the Ortiz Family Living Trust (erroneously sued as Ortiz Family Living Trust), Frank A. Wolfe as Trustee of the 2000 Wolfe Family Trust (erroneously sued as 2000 Wolfe Family Trust), Beverly A. Smallfield, and Stan Kurz’ (collectively, “Defendants”) motion for summary judgment or, in the alternative, summary adjudication is ruled upon as follows.

Although Defendants have not captioned this motion as a “renewed” motion for summary judgment/adjudication, this is Defendants’ second motion for summary judgment/adjudication and, for all intents and purposes, a “renewed” motion for summary judgment/adjudication.

Defendants’ request for judicial notice is granted. In taking judicial notice of these documents, the Court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590 [judicial notice of findings of fact does not mean that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121 [“[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.”]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1570.)

The Court need not rule and does not rule on Defendants’ objections to evidence. (See Code Civ. Proc. 437c(q).)

Factual and Procedural Background

Plaintiffs Kamar Singh and Kent Hoggan (collectively, “Plaintiffs”) filed their First Amended Complaint (“FAC”) on July 12, 2018, alleging declaratory judgment, promissory estoppel, specific performance, breach of contract, and breach of the implied covenant of good faith and fair dealing.

Plaintiffs allege they are the assignees of an agreement to purchase real property (the “Agreement”) that was entered into between SAVS Energy, LLC (“SAVS”) and Defendants on or about January 9, 2017. (FAC ¶¶ 1, 15.) Plaintiffs allege Defendants are fractional owners of the property. (FAC ¶¶ 2-12.)

Plaintiffs allege SAVS assigned the Agreement to them, that SAVS made $30,000 in deposits, and that the transaction was originally scheduled to close on April 27, 2017. (FAC ¶ 16.) Plaintiffs allege that before closing they learned that an adjoining land owner (Lennar) required substantial infrastructure changes to the subject property and that governmental approvals would be required. Plaintiffs allege Defendants did not

disclose these facts. (FAC ¶ 17.) Plaintiffs allege they have expended over $100,000 in engineering and development costs based on Defendants’ representations that they would extend the closing date until completion of the lot line adjustment and reconfigurations, including the necessary governmental approvals. (FAC ¶ 18.) They allege Defendants abruptly attempted to cancel the Agreement in January 2018. (FAC¶ 19.) Plaintiffs allege they are entitled to close on the purchase of the property and that they have performed under the contract. (FAC ¶ 21.)

This is Defendants second Motion for Summary Judgment/Summary Adjudication. In Defendants’ first Motion for Summary Judgment/Summary Adjudication, heard on October 12, 2018, Defendants sought summary adjudication as to each cause of action.

In its ruling on the first motion, the Court granted Defendants’ motion for summary adjudication as to the first cause of action for declaratory relief and second cause of action for promissory estoppel. The Court denied Defendants’ motion for summary adjudication as to the third cause of action for specific performance, fourth cause of action for breach of contract, and fifth cause of action for breach of implied covenant of good faith and fair dealing.

In its tentative ruling on the first motion, the Court found Defendants failed to meet their initial burden as to the third cause of action for specific performance because Defendants failed to address all of the theories raised by the pleadings (i.e., that Plaintiffs were excused from performance) and failed to show Plaintiffs’ partial failure to perform was material or not capable of being fully compensated. As to the fourth cause of action for breach of contract, the Court found Defendants failed to meet their initial burden because their undisputed material facts did not establish Plaintiffs’ lack of performance was not excused or that Defendants did not breach the agreement. Defendants relied upon 10 UMFs for their motion for summary judgment/adjudication. The Court noted that while Defendants raised additional facts in their memorandum of points and authorities, Defendants had failed to include these facts in their separate statement, which serves the important function of notifying the parties which material facts are at issue. The Court denied the motion for summary adjudication as to the fifth cause of action for the same reasons. After a hearing, the Court took the matter under submission and subsequently affirmed the tentative ruling.

Standard for “Renewed Motion” pursuant to CCP § 437c(f)(2)

Code of Civil Procedure § 437c(f)(2), like Code of Civil Procedure § 1008, limits the reconsideration of summary judgment/adjudication motions “unless the [moving] party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law…” (See also, Le Francois v. Goel (2005) 35 Cal.4th 1094, 1099 [“[T]he two statutes say essentially the same thing: A repeated motion or motion for reconsideration must be based on new facts or law.”].) This “prohibition against repeated summary judgment motions was added to make the summary judgment process more efficient and to reduce the opportunities for abuses of the procedure.” ( Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096, fn.3.) While Code of Civil Procedure § 1008 permits reconsideration upon the presentation of “new or different” facts or law, the law imposes an additional limitation that the moving party also demonstrate the “new or different” facts or law could not even with reasonable diligence have been earlier discovered and produced in connection with the earlier motion. (See, e.g., Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1180.)

Code of Civil Procedure § 437c(f)(2) provides in its entirety:

“A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. However, a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Emphasis added.)

Discussion

Based on the express language of CCP § 437c(f)(2), the first inquiry is whether the issues asserted in the present motion are the same as the issues asserted in the earlier motion. In the first motion, Defendants sought summary adjudication of the third, fourth, and fifth causes of action on the grounds SAVS breached the Agreement, the breach was not excused, and Defendants did not breach the Agreement. Here, Defendants again seek summary adjudication of the third, fourth, and fifth causes of action on the grounds Defendants did not breach the Agreement and SAVS’ breach was unexcused. The Court finds Defendants are seeking summary judgment/adjudication on the same cause of action and the same issues asserted in the first motion.

The second inquiry under Code of Civil Procedure § 437c(f)(2) is whether the prior motion was “denied by the court.” There is no question that the Court denied the motion as to the third, fourth, and fifth causes of action.

Since the relevant portion of the earlier motion was denied and since the “renewed” motion asserts the very same issues as the earlier motion, Code of Civil Procedure § 437c(f)(2) bars Defendants from filing the “renewed” motion unless they establish “to the satisfaction of the court” that “newly discovered facts…or a change of law” now supports the issues being re-asserted in the renewed motion. Because there is no suggestion that a “change of law” justifies the renewal of the earlier motion, the final consideration on this renewed motion is whether Defendants have established that the renewed motion is based on “newly discovered facts.”

Defendants fail to articulate anywhere in their moving papers specifically what “newly discovered facts” their “renewed” motion is based upon or provide any explanation as to why any purported “newly discovered facts” were not available or properly before the Court in Defendants’ previous motion. Accordingly, the motion is DENIED.

There is no discussion in the moving papers regarding the standard for a renewed motion for summary judgment or any discussion explaining why Defendants could not have presented the evidence now presented in the second motion when it filed the first motion. In essence, after the Court denied the first motion on the grounds that Defendants did not meet their initial burden, Defendants now attempt to repackage their motion and fix their mistakes. Defendants’ failure to present their best motion on the first attempt does not justify this Court expending even more, already scarce judicial resources so Defendants can take a second bite at the proverbial apple. It should not be necessary to explain that the provisions of § 437c cannot be construed to permit a party to file serial motions for summary judgment/adjudication until ultimately successful. The denial of the original motion in this case was not an invitation for Defendants to revise, reinforce, and refile their motion, and nothing in the Court’s final ruling on the earlier motion indicates otherwise.

The Court is not persuaded that § 437c(f)(2) authorizes a second motion for summary judgment under these circumstances. Again, both § 437c(f)(2) and 1008(b) were enacted to limit redundant or abusive motion practice. (See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096, fn. 3 [“[T]he prohibition against repeated summary judgment motions was added to make the summary judgment process more efficient and to reduce the opportunities for abuses of the procedure [citation] which the additional of subdivision (f)(2) accomplished by overruling the cases that had held that an order denying a motion for summary judgment did not preclude renewal of the same motion at any time before trial”].)

Coupled with the fact that the present motion is essentially a “repackaged” version of Defendants’ original motion and in light of the Third District Court of Appeal’s repudiation of “repackaged” or “reformatted” summary judgment/adjudication motions (see, Patterson v. Sacramento City Unified School District (2007) 155 Cal.App.4th 821, 827), this Court declines to consider the present renewed motion for summary judgment/adjudication to the extent all of issues presented here were previously argued and Defendants could have previously and properly presented the very same evidence in the original motion but decided not to. [“[a]lthough reformatted, condensed, and cosmetically repackaged, the motions are identical.” (Bagley, supra, 73 Cal.App.4th at 1097 [denying as procedurally improper second motion for summary judgment that raised same issues as first motion].)].

Defendants cite to Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 1818 Cal.App.4th 60, 72, in support of their contention that “this motion is well-taken” because they have now reconfigured their separate statement to include previously missing dispositive facts. Nieto is distinguishable. The Nieto Court affirmed the trial court’s ruling that an insurer’s renewed motion for summary judgment was not barred by CCP § 437c(f)(2) because the renewed motion raised the additional issue of fraud that was not raised in the first motion. The fraud issue was omitted from the first motion. The Nieto Court also discussed that a Court may always reconsider its own rulings sua sponte to correct its errors. Here, however, Defendants are not raising an issue that was not raised in the first motion, nor are there any “errors” the Court has determined need to be corrected sua sponte. Thus, the Court is not persuaded this renewed motion is “well-taken.”

Defendants’ renewed motion is DENIED.

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