Superior Court of the State of California

County of Orange

 

DEPT C14 TENTATIVE RULINGS

 

Judge Robert J. Moss

 

These are the Court’s tentative rulings.  They may become orders if the parties do not appear at the hearing.  The Court also might make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.) 

 

If the parties agree to submit on the Court’s tentative ruling, please call the Court Clerk to inform the court that all parties submit on the Court’s tentative ruling.  The tentative ruling will then become the order of the Court upon a party or parties informing the Court that all parties submit to the Court’s tentative ruling. 

 

APPEARANCES:  All appearances will be by video on Zoom.

1.    Visit www.occourts.org

2.    Under Quick Links, click on “Civil Online Check-in/Zoom Pilot Program”

 

COURT REPORTERS:  Official court reporters (i.e. court reporters employed by the Court) are NOT typically provided for law and motion matters in this department.  If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter.  Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:

 

·        Civil Court Reporter Pooling; and

 

·        For additional information, please see the court’s website at  Court Reporter Interpreter Services for additional information regarding the availability of court reporters.

 

 

 

 

Date: October 15, 2021

 

 

#

 

 

 1.

Abuhamad vs. State Farm Mutual Automobile Insurance Company

 

 

30-2020-01175128-CU-UM-CJC

 

Plaintiff’s motion to compel arbitration (UIM.)  No opposition.  Motion granted, conditionally.

 

The motion is granted on the condition that plaintiff file with the court on or before the hearing date and time, a proper proof of service of the motion.  If plaintiff cannot comply with this condition, the hearing will be continued for the purpose of serving the defendant with the moving papers.

 

Moving party to give notice.

 

 2.

 

Arakaki v Phung

 

2021-01187467

 

[Off calendar.]

 3.

BEHZAD vs. SMITH LENDE

 

 

30-2019-01097909-CU-PA-CJC

 

Plaintiff attorney’s motion to be relieved as counsel of record.  No opposition.  Motion granted.

 

Moving party to give notice.

 4.

Blumenthal vs. Jones

 

 

30-2018-01003027-CU-BT-CJC

 

Defendant’s motion for summary judgment.  Hearing continued to 1/14/22 at 9:00 AM in this department.  Opposing party to give notice.

 5.

Byrne vs. St. Margaret's Episcopal School

 

 

30-2017-00949941-CU-NP-CJC

 

Defendant’s motion to enforce settlement agreement.  Motion denied.   

 

The court's power to enforce settlements under Code Civ. Proc., § 664.6 is limited by Code Civ. Proc., § 372, which requires court approval of settlements involving a minor.  Settlements not yet approved by the court may be repudiated by the minor's guardian; (Scruton v. Korean Air Lines Co., Ltd. (1995) 39 Cal.App.4th 1596, 1607.) 

 

Moreover, when the guardian repudiates the settlement, “the decision of the guardian deserves some deference … the court [in that case] has limited power to direct a settlement unilaterally, but to do so, the court must first find that the guardian ad litem has acted arbitrarily and capriciously in the sense that his conduct is inimical to the best interests of the court's ward.”  (Id. at 1607-1608.)

 

Here, the guardians ad litem have repudiated the settlement.  (Maryott Decl. in support of motion, ¶ 8, and Ex. F thereto.)  Further, the settlement expressly provides that it is conditional upon court approval of a minor’s compromise (Ex. A to Maryott Decl., Page 2, second bullet point), which has not occurred.  Finally, moving defendant has not provided evidence that the repudiation is arbitrary or capricious.  (Scruton v. Korean Air Lines Co., Ltd., supra at 1607-1608.)

 

Moving party to give notice.

 

 6.

Goodman vs. Southern California Dermatology, Inc.

 

 

30-2020-01150681-CU-BC-CJC

 

Defendant’s demurrer to the 7th (age discrimination) and 8th (religious discrimination) causes of action of plaintiff’s third amended complaint.  Demurrer overruled.  Defendant shall file an answer within 7 days.

 

Defendants’ previous demurrers to these C/As were sustained because plaintiff failed to allege facts showing discriminatory intent, as opposed to conclusions.  However, the TAC now alleges specific facts as to defendants’ discriminatory intent, on both age and religious grounds, including: (1) “Defendants also blocked Dr. Goodman’s return to the Practice because they believed Dr. Goodman was an ‘old time doctor’ and his age would have a negative impact on the work environment” (TAC at Para. 6); (2) Muirhead stated in an email that “Defendants believed Dr. Goodman was biased against women because he was a member of the Mormon faith and did not want him to return because of this alleged bias” (TAC at Para. 31); (3) “SCD’s employment counsel sent an e-mail to SCD’s ‘independent investigator’ Cheryl Yocum informing her that her investigation was to be consistent with Muirhead’s aforementioned e-mail, which set forth the Defendants’ previous decision to bar Dr. Goodman’s return in part because Defendants’ believed Dr. Goodman was biased against women due to his religion” (TAC at Para. 34); and (4) “When Defendants made their

sham demand, they knew Dr. Goodman would not return to full-time employment by May 4, 2020, due to his age and accompanied heightened risk from COVID-19 because Dr. Goodman told them as much, and it was their intent to use Dr. Goodman’s age against him to create a situation in which Defendants could declare Dr. Goodman’s Buyback Option void” (TAC at Para. 50).  These allegations are restated, and incorporated by reference, in both the 7th and 8th C/As.  (TAC at Paras. 100-105, 111-115.)  Thus, the TAC now alleges specific facts supporting discriminatory intent; moreover, MPs do not argue otherwise.

 

Prior demurrers were also sustained on the basis that the only facts alleged as to discriminatory intent were internally inconsistent, i.e. that SCD refused to rehire Plaintiff, and at the same time insisted he return to the practice by 5-4-21 despite the COVID-19 pandemic and lockdowns.  MPs’ demurrer again raises this argument.  (Moving papers at 8:19-26.)  However, prior versions of plaintiff’s age discrimination claim were deficient for this reason, because these allegations were the only facts alleged as to discriminatory intent based on age (and there were no facts alleged as to discriminatory intent based on religion).  However, the TAC now alleges additional facts as to discriminatory intent on both grounds, as set forth above.  Thus, this particular inconsistency is not fatal, as the TAC otherwise sufficiently alleges specific facts as to discriminatory intent.

 

Finally, MPs argue that this C/A fails to adequately plead an adverse employment action, in that plaintiff has not alleged that he repaid his buy-out payment of approximately $189,665.00, nor returned to the Practice full-time, both of which were required under the applicable written agreements for him to return to employment.  (Moving papers at 6:26-7:28.)  MPs further argue that any argument by plaintiff that he was excused from performing these obligations must fail, as such is a conclusion only without any supporting facts.

 

MPs’ arguments miss the mark.  First, whether or not plaintiff performed his obligations under the written agreements to exercise the Buyback option, goes to plaintiff’s 1st C/A for breach of contract, not the 7th and 8th C/As for discrimination. Second, even if plaintiff’s performance or excuse for nonperformance were required elements for these discrimination claims, plaintiff has in fact alleged specific facts as to his excuse for nonperformance, i.e. that defendants failed to provide financial and other documents for plaintiff’s review prior to exercising the Buyback option, as required by the written agreements.  (TAC at Paras. 21, 22, 35, 36, 49.)  Finally, whether plaintiff was not rehired because of his alleged failure to return his buyout payment, or for the discriminatory reasons plaintiff alleges, is a question of fact for the trier of fact. 

 

Moving party to give notice.

 

 7.

Mendoza v Advanced Management Company

 

2020-01134850

[Off calendar.]

 8.

Olivier vs. Betlejewski

 

 

30-2019-01080158-CU-BC-CJC

 

Defendant’s motion to set aside default and default judgment.  Motion denied.

 

Relief is not available under Code of Civil Procedure, § 437(b) as the default was entered more than six month prior to the bringing of this motion.  Therefore, although the motion is timely as to the default judgment, it is untimely as to the default itself.  The court cannot set aside the default judgment without setting aside the default itself.  The reason is that setting aside the default judgment without setting aside the default would be an “idle act” and thus not permitted even though technically timely.  Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 CA5th 267, 273.  [“ ‘... If the judgment were vacated, it would be the duty of the court immediately to render another judgment of like effect, and the defendants, still being in default, could not be heard in opposition thereto. ...’ ” (Howard Greer Custom Originals v. Capritti (1950) 35 Cal.2d 886, 888–889)].

 

Moving Party does have an alternative to set aside the default and default judgment under Code of Civil Procedure, § 473.5 (lack of notice in time to defend) but the motion fails under that statute as Moving Party’s declaration does not indicate the lack of actual notice was not due to avoidance of service as required in section 473.5(b).

 

Moving party to give notice.

 

 9.

 

Satar vs. BMW of North America, LLC

 

 

30-2021-01192103-CU-BC-CJC

 

Defendants’ motion to compel arbitration.  Motion denied.  (9 USC, §2 [governing arbitration under the Federal Arbitration Act (FAA)]; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565 [party seeking to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue].) 

 

Moving defendants fail to show they, as non-signatories to the lease agreement, have standing to enforce the arbitration clause, either under a third party beneficiary or equitable estoppel theory.

 

MP BMW first contends it may enforce the arbitration provision in the MVLA as a third party beneficiary. 

 

Generally, third parties may enforce an arbitration provision when they are intended third party beneficiaries, or are assigned rights under contract.  (Cohen v TNP 2008 Participating Notes Program, LLC, (2019) 31 Cal.App.5th 840, 859.)  It is “not necessary that the beneficiary be named and identified [in the contract] … [a] third party may enforce a contract where he shows that he is a member of a class of persons for whose benefit it was made.” (Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830, 838.)  However, to enforce the contract as a third party beneficiary, BMW must demonstrate the agreement was “made expressly for [its] benefit.” (Civ. Code, § 1559.)

 

BMW admits it is not a signatory to the subject arbitration agreement. The plain language of the agreement explicitly provides only for the arbitration of disputes between plaintiff and the selling dealership.  It specifically states it covers any dispute “between me and you or your employees, officers, directors, affiliates, successors or assigns, or between me and any third parties if I assert a Claim against such third parties in connection with a Claim I assert against you, which arises out of or relates to my credit application, lease, purchase or condition of this Vehicle, this Lease or any resulting transaction or relationship (including any such relationship with third parties who do not sign this Lease.) 

 

MP also fails to present any evidence that it was an intended third party beneficiary.  As noted above, Para. 2 of the MVLA specifically defines “assignee” as BMW Financial Services NA, LLC (“BMW FS”), or Financial Services Vehicle Trust.  The MVLA was specifically drafted to include the financing agencies that would be administering the loan.  It could have done the same for BMW, but it didn’t. 

 

MP contends that it is a third party beneficiary because the arbitration provision includes claims about the vehicle’s “condition.”  This argument is weak, at best.  The contract itself limits the use for which the vehicle may be used (paragraph 18), the lessee’s responsibility for vehicle maintenance, service, repairs and reconditioning (paragraph 19) the requirement for insurance to cover repairs, loss or damage to the vehicle (paragraph 20) provides lessee is responsible for loss or damage to the vehicle (paragraph 24), and provisions regarding excessive wear and use.  (Paragraph 32)  When read together, the lessor is taking precautions regarding the “condition” of the car and who is responsible for that condition.  There is nothing contained in the lease that talks about the warranties and guarantees made or covered by BMW itself, as BMW argues.

 

BMW also contends it is BMW NA is an “affiliate” under the MVLA because it is a “manager of the assign[ee] of the Contract, BMW Financial Services NA, LLC,” according to the publicly filed Statement of Information for BMW Financial Services, NA, LLC.   (Moving papers at 8:20-24; Ex. 3 to Oaks Decl.)  However, MP provides no evidence that the MVLA in this was actually assigned to BMW Financial Services NA, LLC.  While the Decl. of Tyler Weight in support of the motion outlines the various relationships between BMW Bank of North America, BMW Financial Services, NA, LLC, and BMW of North America, LLC [MP here], there is in fact no evidence that the subject MVLA was in fact assigned to any of these entities.  In any event, although MP may be the parent company of BMW Financial Services, which in turn is apparently the parent company of BMW Bank of North America, these are all separate legal entities. 

 

Thus, based on the above, BMW does not have standing to enforce the subject arbitration provision.

 

Finally, as noted above, the moving papers do not address MP Sterling’s standing to seek arbitration under the MVLA at all.

 

Second, under a theory of equitable estoppel, “a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.” (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1354.)  Here, BMW argues that Plaintiff’s claims arise from the MVLA with non-party BMW of Fremont, which contains the arbitration clause.  However, while the existence of the lease is a prerequisite to Plaintiff’s Song-Beverly Act claim, plaintiff’s claims against BMW do not rely on the terms of the lease.  Rather, they rely on the express warranty issued by BMW as alleged at Para. 10 of the complaint.

 

In support of its argument, BMW relies on Felisilda, supra.  In that case, the appellate court held that equitable estoppel required the plaintiffs to arbitrate their Song-Beverly Act claim against the vehicle manufacturer based on language of the sales contract.  The Felisilda court pointed to language in the sales contract providing that, “[a]ny claim or dispute, whether in contract, tort, statute or otherwise ... between you and us ... which arises out of or relates to ... [the] condition of this vehicle ... shall ... be resolved by neutral, binding arbitration and not by a court action.” (Id. at 496.) The appellate court concluded, “Because the Felisildas expressly agreed to arbitrate claims arising out of the condition of the vehicle – even against third party nonsignatories to the sales contract – they are estopped from refusing to arbitrate their claim against [the manufacturer].” (Id. at 497.)

 

The Felisilda court distinguished federal decisions including Soto v. American Honda Motor Co. (N.D. Cal. 2012) 946 F.Supp.2d 949, 952, which contained an arbitration clause stating “[e]ither you [ (i.e., the purchaser) ] or we [ (i.e., dealership) ] may choose to have any dispute between us decided by arbitration and not in court or by jury trial.” The Felisilda court held the arbitration clause at issue was distinguishable from that in Soto because it included “an express extension of arbitration to claims involving third parties that relate to the vehicle's condition.” (Id. at 497-498.)

 

Here, the arbitration clause does not expressly require arbitration against the third-party manufacturer under the present circumstances. The lease contains definitions of “I” or “my,” which refers to the lessee, and “you” or “your,” which refers to the lessor (BMW of Fremont.)  The lease defines a “claim” to include any “dispute” related to “condition of this Vehicle.” The lease provides that “Any Claim shall, at your or my election, be resolved by neutral, binding arbitration and not by a court action.” (Emphasis added.)  BMW of Fremont is not a party to this case and therefore cannot elect arbitration. The lease agreement expressly limits the ability to invoke arbitration to either the lessor or lessee.

 

Moreover, the arbitration clause defines “claim” in part to include “any claim . . . between me and you or your employees, officers, directors, affiliates, successors or assigns, or between me and any third parties if I assert a Claim against such third parties in connection with a Claim I assert against you, which arises out of or relates to my credit application, lease, purchase or condition of this Vehicle…” Here, BMW has not established it is an “affiliate, successor or assign” of BMW of Fremont, as discussed above. As a third party, BMW might invoke the clause if Plaintiff asserted a claim against it “in connection with a Claim” against BMW of Fremont.  However, BMW of Fremont is not a party to this lawsuit. 

 

Based on the above, BMW has not demonstrated that equitable estoppel requires plaintiff to attend arbitration.

 

Finally, as noted above, the moving papers do not address MP Sterling’s standing to seek arbitration under the MVLA at all, nor explain how equitable estoppel applies to plaintiff’s negligent repair claim against Sterling.

 

Both parties’ requests for judicial notice are denied.  (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 [court need not  take judicial notice of irrelevant documents].)

 

Moving defendants’ evidentiary objections to the Wagner Decl. in support of the opposition are sustained as to Objection Nos. 7-14 (relevance) and otherwise overruled.

 

Plaintiff shall give notice.

 

10.

Stokes vs. Ambry Genetics Corporation

 

 

30-2021-01206552-CU-WT-CJC

 

Defendant’s motion to compel arbitration.  Motion granted.  (See Code Civ. Proc. § 1281.2.)

 

Defendant met its burden to show: (1)  The existence of written agreement to arbitrate; (2) A demand to arbitrate and refusal by the party opposing arbitration; and (3) Proof that the arbitration agreement covers the dispute at issue. (Mansouri v. Superior Court (2010) 181 Cal.App.4th 633.)  The burden then shifted to Plaintiff to show why the arbitration agreement should not be enforced.

 

Grounds to decline to enforce the arbitration agreement include unconscionability. Defendant’s evidence reflects the fact that the Arbitration Agreement was an express condition of Plaintiff’s employment, offered on a take it or leave it basis. (Kibushi Dec. ¶¶ 4-5.)  The face of the Arbitration Agreement expressly states that execution of the Agreement is a condition of employment, thus  procedural unconscionability exists.

 

As for the substantive unconscionability prong, in an employment/FEHA action, the arbitration agreement must: (1) provide for a neutral arbitrator; (2) provide adequate discovery; (3) requires a written award; (4) provide for all types of relief that would otherwise be available in court; and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 102-03 (“Armendariz”).)

 

The only dispute between the parties presented to the court is whether the Arbitration Agreement provides for adequate discovery.

 

“Employment disputes are factually complex, and their outcomes “are often determined by the testimony of multiple percipient witnesses, as well as written information about the disputed employment practice.” (Fitz, supra, 118 Cal.App.4th at p. 717, 13 Cal.Rptr.3d 88.) Seemingly neutral limitations on discovery in employment disputes may be nonmutual in effect. This is because the employer already has in its possession many of the documents relevant to an employment discrimination case as well as having in its employ many of the relevant witnesses. (Id. at p. 716, 13 Cal.Rptr.3d 88.)”

 

(Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713, 727 [citing Fitz v. NCR (2004) 118 Cal.App.4th 702].)

 

In this case, Plaintiff had been employed by Defendant for over four years. (Compl. ¶ 13). The alleged harassment and discrimination occurred over a span of almost two years. (Id. ¶ 19). Plaintiff’s counsel has identified at least seven individuals he believes he will have to depose to prepare for the arbitration, plus expert witnesses. (Bain Dec. ¶ 8, Exh. G.)

 

The court finds that the holdings in (Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713 and Davis v. Kozak (2020) 53 Cal.App.5th 897), coupled with Plaintiff’s evidentiary showing on the amount and scope of depositions necessary to adequately prepare for arbitration, require that the motion be granted.

 

Defendant’s previous offers in discussions between counsel to increase the number of depositions are not a binding agreement, as required by JAMS Employment Arbitration and Mediation Rules, rule 17(b), leaving the Plaintiff’s ability to obtain additional necessary depositions to the discretion of the arbitrator upon a showing of “reasonable need.”  This term is not defined in the Rules, but appears comparable to the  “…good and sufficient cause shown...” (Baxter), and “sufficient cause” (Davis) requirements for additional depositions in the foregoing appellate holdings.

 

Moving parties to give notice.

 

 

 

11.

Stone v Teacher Created Materials, Inc.

 

2020-01153433

 

[Off calendar.]

12.

Veronese v Baz

 

2020-01142153

 

[Off calendar.]

13.

Villalobos v General Motors, LLC

 

2021-01186780

 

[Off calendar.]

14.

Beverly v Apple Inc

 

2021-01125650

 

[Continued to 11/12/21.]

15.

Shi vs. Li

 

 

30-2018-01035827-CU-CO-CJC

 

1.  Plaintiff Yuhong Shi’s motion for summary adjudication as to the third cause of action against defendants Yilin Li, Tiantian Li, and Xiaoping Li. Motion denied. [Code Civ. Proc., § 437c, subd. (f) [authorizing summary adjudication].)

 

Moving party’s notice of motion seeks summary adjudication of 26 different transactions in connection with her third cause of action for “Avoidance and Recovery of Voidable Transaction.”  However, plaintiff’s First Amended Complaint alleges additional transactions not addressed by the motion; accordingly, moving plaintiff has not met her initial burden on summary judgment / adjudication.  (First Amended Complaint, ¶¶ 48, 50, 79, 80 [transactions not addressed by motion]; Keniston v. American Nat'l Ins. Co. (1973) 31 Cal.App.3d 803, 812 [moving party’s evidence must be directed to the claims or defenses raised in the pleadings]; Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001 [where moving party has not addressed all of the relevant allegations of the complaint and/or all theories of liability alleged, it is not entitled to summary judgment / adjudication].) 

 

Furthermore, as there is no dispute that there are additional transactions not addressed by the motion, summary adjudication as requested will not “completely dispose[] of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).) 

 

Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, and Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, cited for the first time in plaintiff’s Reply, are not on point, as both cases involved only two parties and a single legal issue [statute of limitations].  Here, however, plaintiff seeks to summarily adjudicate multiple transactions, among four different parties; further, each transaction requires multiple legal determinations under Civil Code, § 3439.04.  Thus, summary adjudication here will not serve the policy behind motions for summary adjudication, i.e. “to expedite litigation by the elimination of needless trials.”  (Lilienthal & Fowler v. Superior Court, supra at 1854; see also Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1095, n. 2 [“We cannot imagine that the result [in Lilienthal] would have been the same had the request been for one hundred and thirty separate summary adjudications”]; see also DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 412 [subdivision (f)(1) does not permit summary adjudication of specific “components of compensatory damages claimed by plaintiff, so that the granting of the motion will not completely dispose of a cause of action”].) 

 

Moreover, plaintiff has not complied with Code Civ. Proc., § 437c, subd. (t), setting forth specific requirements for “summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty.”

 

As plaintiff has not met her initial burden, even if all of plaintiff’s evidence is considered, there is no need to address defendants’ evidentiary objections.  (Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion”].)  Likewise, as the burden does not shift to defendants under Code Civ. Proc., § 437c, subd. (p)(1), there is no need to consider defendants’ evidence, or plaintiff’s evidentiary objections thereto.

 

Moving party to give notice.

 

 

2.  Plaintiff Yuhong Shi’s motion for summary adjudication as to the third cause of action against defendants Shunze Li and Xue Gong.  Motion denied.  [Code Civ. Proc., § 437c, subd. (f) [authorizing summary adjudication].)

 

Moving party’s notice of motion seeks summary adjudication of 28 different transactions in connection with her third cause of action for “Avoidance and Recovery of Voidable Transaction.”  However, plaintiff’s First Amended Complaint alleges additional transactions not addressed by the motion; accordingly, moving plaintiff has not met her initial burden on summary judgment / adjudication.  (First Amended Complaint, ¶¶ 47-49 [transactions not addressed by motion]; Keniston v. American Nat'l Ins. Co., supra at 812 [moving party’s evidence must be directed to the claims or defenses raised in the pleadings]; Amerigas Propane, LP v. Landstar Ranger, Inc., supra at 1001 [where moving party has not addressed all of the relevant allegations of the complaint and/or all theories of liability alleged, it is not entitled to summary judgment / adjudication].) 

 

Furthermore, as there is no dispute that there are additional transactions not addressed by the motion, summary adjudication as requested will not “completely dispose[] of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  Lilienthal & Fowler v. Superior Court, supra, and Edward Fineman Co. v. Superior Court, supra, are not on point for the reasons discussed above in connection with Motion #1.

 

Moreover, plaintiff has not complied with Code Civ. Proc., § 437c, subd. (t), setting forth specific requirements for “summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty.”

 

As plaintiff has not met her initial burden, even if all of plaintiff’s evidence is considered, there is no need to address defendants’ evidentiary objections.  (Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion”].)  Likewise, as the burden does not shift to defendants under Code Civ. Proc., § 437c, subd. (p)(1), there is no need to consider defendants’ evidence, or plaintiff’s evidentiary objections thereto.

 

Moving party to give notice. .

 

3.  Plaintiff Yuhong Shi’s motion for summary adjudication as to the third cause of action against defendant Pierre J. Rodnunsky in his capacity as trustee of the Xin Li Legacy Trust.   Motion denied.  [Code Civ. Proc., § 437c, subd. (f) [authorizing summary adjudication].)

 

Moving party has not provided sufficient evidence establishing each element of her claims for fraudulent conveyance.  (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Civil Code, § 3934.04 [voidable transactions generally]; CACI 4200 [elements]; Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1299 [court’s discretion; “[e]ven the existence of several ‘badges of fraud’ may be insufficient to raise a triable issue of material fact”].) 

 

Plaintiff’s evidentiary objections to the Feder Decl. in support of the Opposition are overruled. 

 

Moving party to give notice.