2014-00172996-CU-BC

Robert Winger vs. Edward Winger

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Edward Winger)

Filed By: Mazzocone, Michael A.

Defendant/cross-complainant Edward Winger’s motion for summary adjudication as against plaintiff/cross-defendant Mark Whisler dba Whisler Land Company is ruled on as follows.

*** Judge Rodda discloses that he has known Allan Owen for years and is a personal friend of his brother, William Owen. This disclosure is made for the benefit of the parties and counsel but in Judge Rodda does not find it to be a reason for recusing himself from this matter. ***

*** 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 three issues submitted for summary adjudication, which of moving defendant’s 20 Undisputed Material Facts and/or which of plaintiff’s 19 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. Moving counsel 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. If moving counsel is unable to contact opposing counsel prior to hearing, moving counsel is ordered to appear at the hearing in person or by telephone.

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

Moving counsel’s reply papers were for unknown reasons not filed until the mid-afternoon on 12/31/2018, leaving the court with less than two full court days to prepare its tentative ruling on this matter.

Moving counsel failed to comply with CRC Rule 3.1354(b)(3), requiring objections to evidence to quote or set forth the objectionable statement or material.

Both moving and opposing counsel 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.

Both moving and opposing counsel failed to comply with CRC Rule 3.1350(d)(3) and (f)(2), respectively, which require the citation to evidence in support of each material fact and each material fact claimed to be disputed include reference to the exhibit, title, page, and line numbers.

Opposing counsel failed to comply with CRC Rule 3.1350(f)(2), requiring the separate statement in opposition to state whether each fact is “disputed” or “undisputed” and for each fact claimed to be disputed, provide a brief description of the “nature of the dispute” followed by a citation to the supporting evidence by exhibit, title, page, and line numbers. For unknown reasons, the separate statement in opposition does not identify whether each material fact is “disputed” or “undisputed” and moreover, even those which are ostensibly disputed does not include a citation to any evidence whatsoever but rather merely a reference to one or more of the opposition’s 19 Additional Material Facts. This, however, does not comply with the Rules of Court and is not helpful to the court’s resolution of the issues presented.

Both moving and opposing counsel are advised that (1) their failures to comply

with the applicable Rules of Court has caused an unnecessary waste of finite judicial resources and (2) future papers which do not comply with applicable Rules of Court may be stricken.

Factual Background

This action was filed in 2014 by plaintiffs Robert Winger (“Robert”) and Mark Whisler (“Whisler”) dba Whisler Land Company (“WLC”) against moving party, defendant Edward Winger (“Edward”). According to the complaint, WLC was retained in 1988 to manage a rental property owned by Edward, whose brother Robert executed the property management agreement on behalf of WLC. Edward subsequently acquired additional properties which were managed by WLC’s agent, Robert. It is alleged that in 2013 Edward unilaterally terminated this arrangement by taking all of the money being held in the established property management accounts established by the Agreement and retaining others to manage his rental properties. Plaintiffs allege damages in excess of $270,000. The operative complaint asserts causes of action against Edward for breach of contract and common counts.

Edward has filed a cross-complaint against Robert, Whisler and WLC for breach of fiduciary duty, fraud, negligence, accounting, conversion, quiet title and unjust enrichment.

In 2018, brothers Robert and Edward agreed to settle their claims against one another after Robert was diagnosed with cancer. Robert moved for a good faith determination and Whisler opposed, with both Robert and Whisler dying before the court ultimately granted Robert’s motion on 7/9/2018. Shortly thereafter, the representative of Robert’s estate dismissed the complaint as against Edward.

Additionally, the administrator of Whisler’s estate filed a cross-complaint against Robert for express indemnity, alleging that in 2004 Robert entered into an Independent Contractor Agreement which states Robert would not only provide property management services as an independent contractor to WLC but also indemnify Whisler for any claims, losses, expenses, etc. incurred as a result of these property management services. In short, Whisler seeks from Robert the attorney fees and costs incurred by Whisler in defending against Edward’s cross-complaint which arises from Robert’s property management services.

Trial is currently set to commence on 2/5/2019.

Moving Papers. Edward now moves for summary adjudication of both of Whisler’s causes of action for breach of contract and common counts on the ground that Whisler has admitted in response to Special Interrogatories and Requests for Admissions he is not seeking any damages from Edward on account the property management services previously rendered by Robert but rather only fees and costs Whisler has incurred as a result of Edward’s cross-complaint, citing Undisputed Material Fact (“UMF”) Nos. 1-8 (contract claim) and Nos. 9-14 (common counts). Edward also seeks summary adjudication relative to his cross-complaint against Whisler and specifically, that Whisler owed Edward a fiduciary duty in connection with WLC’s property management services, relying on UMF Nos. 15-20.

Opposition. The administrator of Whisler’s estate opposes, arguing that the evidence shows Edward failed to pay Robert for property management services performed for

Edward and Robert was required to pay a portion of his earnings to Whisler, which portion remains unpaid. The opposition curiously suggests this court should overlook Whisler’s earlier admissions and discovery responses which unequivocally indicate he is not seeking damages from Edward but instead consider the “credible evidence” showing that Whisler did suffer damages as a result of Edward’s failure to pay for Robert’s property management services. With respect to Edward’s request for an adjudication that Whisler owed Edward a fiduciary duty as alleged in the latter’s cross-complaint, the opposition concedes a licensed real estate broker such as Whisler does owe a fiduciary duty to supervise agents acting under his/her license but then contends the evidence in this case shows there was no breach of this duty, thereby obviating the need for the court to grant summary adjudication on the existence of this fiduciary duty. The opposition insists that a handful of Edward’s 20 UMF are “disputed” and offers 19 Additional Material Facts (“AMF”) of its own in an attempt to defeat summary adjudication.

Finally, Whisler maintains that this court cannot grant Winger’s motion in light of Robert’s estate’s counsel’s recent discovery of “thousands if previously unproduced emails from Robert,” which are claimed not only to be responsive to Whisler’s earlier discovery requests but also “very likely [to] create and/or enhance fact disputes that are central to Whisler’s ability to effectively oppose the instant motion.”

Request for Continuance

As noted above, Whisler’s opposition includes a request for a continuance of the hearing on this motion pursuant to Code of Civil Procedure §437c(h) but the Bluth Declaration submitted with the opposition fails to establish not only that there likely exists evidence which would support an opposition to the present motion but also that such discovery could not with reasonable diligence have been completed prior to the deadline for the opposition papers. Instead, the Bluth Declaration merely avers in pertinent part that it was recently disclosed that counsel for Robert’s estate found what is understood to be “potentially hundreds (or more) emails between Robert Winger and other parties…that could bear directly on the issues in dispute in this case…” ( Underline added for emphasis.)

Aside from the fact the declaration fails to demonstrate any diligence with respect to Whisler’s pursuit of these emails now claimed to be responsive to earlier discovery requests, it is pure speculation for the opposition to argue these unidentified emails are “very likely” to relate to any issue raised by this motion, much less create a triable issue. This is particularly true since the bulk of Edward’s motion is itself based on Whisler’s own admissions which, under Code of Civil Procedure §2033.410, are “ conclusively established against the party making the admission…unless the court has permitted withdrawal or amendment of that admission” (underline added for emphasis) and the remainder is premised on an assertion of the existence of a fiduciary duty which is effectively conceded by the opposition.

Finally, to the extent Whisler suggests the undisclosed emails may reflect communications between or among the parties, it stands to reason that such emails have at all times been in the parties’ possession, custody or control, including Whisler. As such, it can be anticipated that a number of these “new” emails will likely be duplicative of others already known to the parties.

For all these reasons, the court will exercise its discretion by denying the continuance

sought by Whisler. (See, e.g., Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 251, 255-256; Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.)

Objections to Evidence

Whisler (timely) filed no written objections to evidence in conformity with CRC Rule

3.1354(b). To the extent Whisler’s responses to certain of Edward’s UMF purport to assert objections to evidence, such objections are overruled because CRC Rule

3.1354(b) states that objections to evidence shall be set forth in a separate document and must inter alia quote or set forth the objectionable statement or material. To the extent Whisler’s responses to certain of Edward’s UMF purport to assert objections to the UMF themselves, such objections must be overruled because objections are properly directed solely at evidence. (See, CRC Rules 3.1352, 3.1354.)

Edward’s written objections to Whisler’s evidence do not comply with CRC Rule

3.1354(b), requiring the objections quote or set forth the objectionable statement or material, and are overruled except for objection No. 8, which is sustained only as to Owen’s deposition testimony about the signature on the verifications of Whisler’s discovery responses and other documents.

Edward’s purported objections to Whisler’s AMF are overruled because objections are properly directed solely at evidence (see, CRC Rules 3.1352, 3.1354) and Rule 3.1354

(b) expressly prohibits objections to evidence from being restated or reargued in the separate statement.

Analysis

Edward’s Initial Burden of Production. The threshold question presented here is whether Edward’s moving papers are sufficient to carry his initial burden under Code of Civil Procedure §437c(p)(2) by showing entitlement to summary adjudication of the two causes of action asserted by Whisler in the complaint and under §437c(p)(1) by showing facts sufficient to demonstrate that Whisler owed a fiduciary duty as alleged in Edward’s cross-complaint. This court finds that Edward did satisfy his initial burden and notes that the opposition failed to identify any specific basis to reach a different conclusion. Consequently, Edward has successfully shifted to Whisler the burden to produce admissible evidence sufficient to establish the existence of at least one triable issue of material fact which precludes summary adjudication on those issues set forth in the moving papers.

Breach of Contract and Common Counts. As noted above, Edward first seeks summary adjudication of both of these causes of action alleged by Whisler on the ground that Whisler has admitted in response to Special Interrogatories and Requests for Admissions (“RFA”) he is not seeking any damages from Edward on account the property management services previously rendered but is instead seeking reimbursement (presumably from Robert) for the fees and costs Whisler has incurred in defending against Edward’s cross-complaint. The court finds that Edward’s contention is borne out by the following discovery requests and Whisler’s responses:

Interrogatory 37: “Itemize the management fees YOU contend are owed to YOU by Edward Winger as alleged in YOUR complaint…”

Response: “I did not authorize the filing or any litigation against Edward

Winger. I never provided property management services for Edward Winger so I am owed nothing. I am only seeking attorney’s fees and costs relating to the cross-complaint.”

Interrogatory 38: “Itemize the reimbursable costs YOU contend are owed to YOU…as alleged in YOUR complaint against Edward Winger.”

Response: “I did not authorize the filing or any litigation against Edward Winger. I never provided property management services for Edward Winger so I am owed nothing for such services. I am only seeking attorney’s fees and costs relating to the cross-complaint.”

Interrogatory 39: “Do YOU claim that YOU are owed any management fees by Edward Winger as alleged in YOUR complaint against Edward Winger.”

Response: “I did not authorize the filing or any litigation against Edward Winger. I never provided property management services for Edward Winger so I am owed nothing for such services. I am only seeking attorney’s fees and costs relating to the cross-complaint.”

Interrogatory 40: “Do YOU claim that YOU are owed any reimbursable costs by Edward Winger as alleged in YOUR complaint against Edward Winger.”

Response: “I did not authorize the filing or any litigation against Edward Winger. I never provided property management services for Edward and Robert Winger so I am owed nothing for such services. I am only seeking attorney’s fees and costs relating to the cross-complaint.”

RFA 66: “Admit that the Edward Winger does not owe YOU compensation for YOUR purported management of the RENTAL PROPERTIES.”

Response: “ADMIT: I am only seeking damages as related to the costs and fees related to the defense of the cross-complaint.” (Underline added for emphasis.)

RFA 68: “Admit that the Edward Winger does not owe YOU any reimbursement for any reimbursable costs in connection with the RENTAL PROPERTIES.”

Response: “ADMIT[.] I am only seeking damages as related to the costs and fees related to the defense of the cross-complaint.”

These unqualified discovery responses make clear that Whisler does not contend he is owed any money from Edward based on the complaint’s allegations of breach of contract and common counts as against Edward. Of particular note is Whisler’s response to Edward’s RFA 66 and 68, wherein the former admits the latter does not owe Whisler any compensation or reimbursement of any cost relating to WLC’s management of Edward’s properties and moreover, the only “damages” Whisler is seeking are the fees and costs incurred as a result of defending against Edward’s cross-complaint. As already explained above, these admissions by Whisler are pursuant to the express language of Code of Civil Procedure §2033.410 “conclusively established against [Whisler]…unless the court has permitted withdrawal or amendment of that admission” (underline added for emphasis) but it appears no such relief from these admissions has been sought or granted.

Consequently, the opposition’s attempt to question the authenticity of Whisler’s signature on the verification for the responses to the RFA is legally insufficient to

create a triable issue of material fact which defeats summary adjudication of the contract and common count claims asserted in the complaint against Edward. Regardless, Edward’s objection to the deposition testimony of Mr. Owen relating to questions over the authenticity of Whisler’s signature on the verification has been sustained, thereby confirming the absence of any genuine triable issue of fact relating to Whisler’s contract and common count claims against Edward.

Because Whisler has failed to carry his burden of presenting admissible evidence sufficient to create a triable issue of material fact relative to the damages alleged in the two causes of action pled in the complaint, the court holds that Edward is entitled to summary adjudication of both causes of action on the grounds advanced in the moving papers.

Fiduciary Duty. The remaining issue presented for summary adjudication by Edward is that Whisler owed Edward a fiduciary duty in connection with the management of Edward’s rental properties, as alleged in the cross-complaint against Robert, Whisler and WLC for breach of fiduciary duty, fraud, negligence, accounting, conversion, quiet title and unjust enrichment. As previously noted, this court has found that Edward’s moving papers are sufficient to carry his initial burden under Code of Civil Procedure §437c(p)(1) on this issue and has thereby shifted to Whisler the burden of producing admissible evidence which creates a triable issue of material fact relating to the existence of this claimed fiduciary duty.

The opposition appears to concede at Page 6:3-6 that Whisler, as a licensed broker, indeed owed various legal duties but then asserts that an order finding the existence of a fiduciary duty is unnecessary inasmuch as the law already establishes the existence of such a duty. Whisler then proceeds to argue that the evidence demonstrates that Whisler did not breach the duty owed to Edward.

Code of Civil Procedure §437c(f)(1) 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 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 damages, or an issue of duty.” (Underline added for emphasis.)

Here, Edward permissibly seeks summary adjudication of the issue of whether or not Whisler owed a fiduciary duty in connection with the management of the former’s properties and the opposition effectively concedes that as a licensed broker, Whisler did owe Edward such a duty. Therefore, Edward is here entitled to an order finding the existence of this fiduciary duty but the court need not determine whether Whisler may have breached such duty since this was not among the issues identified in Edward’s Notice of Motion and since it otherwise has no bearing on the question of the existence of the duty.

Conclusion

For the reasons explained above, Edward’s motion for summary adjudication of the two causes of action alleged in the complaint by Whisler is GRANTED and Edward’s motion for summary adjudication determining that Whisler owed a fiduciary duty to Edward in connection with the management of the latter’s properties is also
GRANTED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)