Superior Court, State of California



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TROUBLESHOOTING TENTATIVE RULINGS

If you do not see this week’s tentative rulings, either they have not yet been posted, or your web browser cache (temporary internet files) is pulling up an older version. You may need to “REFRESH”, or “QUIT” your browser and reopen it – or adjust your internet settings so you only see the current version of the web page. Otherwise, your browser may continue to show an older version of the web page even after the current tentative rulings have been posted.

|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |21CV379828 |Empire Investments, LLC et al v. |Click on Line 1 for Ruling |

| | |Paul Nguyen et al | |

|LINE 2 |21CV381790 |Jagadesh Achanta v. Addison Groo |Defendant Lyft, Inc.’s Demurrer to the Complaint is unopposed and SUSTAINED WITH |

| | |et al |TEN DAYS LEAVE TO AMEND. Moving party is instructed to prepare the Order. |

|LINE 3 |19CV354936 |Adrian Dunu et al v. James |Click on Line 3 for Ruling |

| | |Sagorac, Jr. et al | |

|LINE 4 |19CV354936 |Adrian Dunu et al v. James |Plaintiffs’ Motion to Continue Trial Date---Parties to Appear |

| | |Sagorac, Jr. et al | |

|LINE 5 |17CV319863 |Teresa Avila-Burns v. Sentry Alarm|Off Calendar per moving party |

| | |Systems of America, Inc. et al | |

|LINE 6 |19CV346350 |Leo Gurvich v. ViewRay |Continued to Feb. 24, 2022 at 9 a.m.----Parties have IDC scheduled with Judge |

| | |Technologies, Inc. et al |Overton on 2/9/2022 |

|LINE 7 |19CV346350 |Leo Gurvich v. ViewRay |Continued to Feb. 24, 2022 at 9 a.m.----Parties have IDC scheduled with Judge |

| | |Technologies, Inc. et al |Overton on 2/9/2022 |

|LINE 8 |19CV346350 |Leo Gurvich v. ViewRay |Continued to Feb. 24, 2022 at 9 a.m.----Parties have IDC scheduled with Judge |

| | |Technologies, Inc. et al |Overton on 2/9/2022 |

|LINE 9 |19CV357864 |Chris DiPierto v. Altest |Plaintiff’s Motion to Compel Responses to Requests for Production of Documents and|

| | |Corporation et al |for Monetary Sanctions is unopposed and GRANTED. Defendant is ordered to provide |

| | | |complete responses within 30 days of the date of this Order and to pay monetary |

| | | |sanctions in the sum of $1050. Moving party is instructed to prepare the Order. |

|LINE 10 |17CV315458 |Richard Wilmer et al v. CEM |Defendant/Cross-Defendant Argonaut Window and Door, Inc.’s Motion for Good Faith |

| | |Builders, Inc. et al |Settlement Determination is unopposed and GRANTED. Moving party is instructed to |

| | | |prepare the Order. |

|LINE 11 |17CV315458 |Richard Wilmer et al v. CEM |Defendant/Cross-Defendant Oliveira Plastering, Lathing and Drywall, Inc.’s Motion |

| | |Builders, Inc. et al |for Good Faith Settlement Determination is unopposed and GRANTED. Moving party is|

| | | |instructed to prepare the Order. |

|LINE 12 |17CV315458 |Richard Wilmer et al v. CEM |Defendant/Cross-Defendant Fidelity Roof Company’s Motion for Good Faith Settlement|

| | |Builders, Inc. et al |Determination is unopposed and GRANTED. Moving party is instructed to prepare the|

| | | |Order. |

|LINE 13 |21CV377282 |Jane Doe v. Sarvjot Singh et al |Plaintiff’s Motion for Leave to File First Amended Complaint is unopposed and |

| | | |GRANTED. Moving party is instructed to prepare the Order. |

|LINE 14 |2003-7-CV-435086 |Discover Bank v. Nguyen |Hearing on Claim of Exemption of Hoang-Anh Nguyen---Parties to Appear |

|LINE 15 | | | |

|LINE 16 | | | |

|LINE 17 | | | |

|LINE 18 | | | |

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Calendar Line 1

Case Name: Empire Investments LLC, et al. v. Paul Nguyen, et al.

Case No.: 21CV379828

Plaintiffs/Cross-Defendants Empire Investments LLC, et al.’s demurrer to the Cross-Complaint of Defendant/Cross-Complaint Paul Nguyen is overruled as MOOT.

Assuming for purposes of argument that the demurrer was properly noticed, the Court will exercise its discretion to allow the late filing of Defendant Nguyen’s amended Cross-Complaint.

An amended complaint (or cross-complaint) supersedes all prior complaints and, since there is but one complaint in a civil action, “the filing of an amended complaint moots a motion directed to a prior complaint.” (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-1131.) Any pending demurrer is therefore rendered moot by the filing of an amended complaint and it is proper for the trial court to take the matter off-calendar. (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.)

Defendant/Cross-Complainant Nguyen is reminded that this is his one as of right amendment to the Cross-Complaint. Any further request to amend the Cross-Complaint will need to be made through a noticed motion for leave to amend.

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Calendar Line No. 3

Case Name: Adrian Dunu, et al. v. James M. Sagorac, et al.

Case No.: 19-CV-354936

Motions for Summary Judgment to the Complaint by Defendants James M. Sagorac and Mircea Voskerician

Factual and Procedural Background

This matter is a dispute arising from a contract to develop real property.

Plaintiffs Adrian Dunu and Catalin Dunu (collectively, “Plaintiffs”), who are brothers, have sued defendants James Sagorac, (“Sagorac,” self-represented), Mircea Voskerician (“Voskerician”) and Dixon Development Company, LLC (collectively, “Defendants”) for: (1) Breach of Contract (two promissory notes, alleged against Defendant Sagorac and Doe Defendants only); (2) Fraud (alleged against all Defendants); and (3) Negligent Misrepresentation (alleged against all Defendants).

According to the operative complaint, Plaintiffs allege (at ¶ 12) that in May 2011, they each invested $125,000 with Defendants for the purpose of funding Defendants’ development of real property. In return, “Sagorac provided Plaintiffs each with an unsecured Promissory Note promising repayment of $140,000 each (the “Notes”) and a Limited Liability Company Interest Pledge Agreement whereby Defendant Dixon Development Company, LLC—the alleged owner of the 782 Dixon Property—purportedly granted Plaintiffs a 5% profit share in the company (the “Pledge Agreements”).” Copies of the Promissory Notes given to the Plaintiffs are attached to the complaint as exhibits A and B. Copies of the Pledge Agreements, which are not part of the breach of contract claim, are attached as exhibits C and D.

Plaintiffs allege the entire outstanding balance for each promissory note was due and payable on July 7, 2012 and that defendant Sagorac failed to make payment on that date. Plaintiffs also allege that each promissory note expressly provides that the “holder” of the note (Plaintiffs) “may from time to time extend the maturity of this note or the time any payment is due under this note and may accept further security or release security for the payment of this note, without in any way affecting our obligations of maker to holder.” (See Complaint at ¶¶ 12-14.) This quoted language is found on page 5 of each promissory note.

Plaintiffs further allege they contacted Defendants after July 7, 2012 and met with them on September 6, 2012 to discuss options. At this time, Defendants requested and received an extension of time for payment as permitted under the terms of the notes. Plaintiffs “agreed to extend the note until such time that construction was completed and the Property sold. On or about May 7, 2014, Plaintiff Adrian Dunu contacted Defendant Sagorac by phone to inquire about payment of the Notes. Sagorac told Plaintiff that construction of the Property was completed and the Property sold in April 2014; that he was on the other line discussing the sale with Defendant Voskerician; and that he needed some time to ‘sort things out’ in order to confirm when they could send him and Plaintiff Catalin Dunu their money. Thereafter, in or around mid-2014 and continuing through 2019, Plaintiff Adrian Dunu would regularly contact Defendant Voskerician and Sagorac to inquire about payment of the Notes and each time Sagorac promised he would repay the Notes but needed ‘to work some issues out’ because one of Defendants’ partners took all the sale proceeds from the Property and, accordingly, there was no money to disperse and the Property was tied up in litigation. In July 2019, Plaintiffs notified Sagorac in writing that they would no longer agree to extend maturity of the Note and demanded payment in full by July 31, 2019.” (Complaint at ¶¶ 15-18.) When no payment was received by the end of this last extension, Plaintiffs proceeded to file the present lawsuit.

On September 11, 2019, Plaintiffs filed their complaint against Defendants.

On November 20, 2019, defendant Voskerician filed an answer to the complaint alleging a general denial and various affirmative defenses.

On November 27, 2019, defendant Sagorac filed a demurrer to the complaint. The motion was set for hearing on May 28, 2020. Prior to the hearing, the court posted a tentative ruling overruling the demurrer. Neither party appeared at the hearing or contested the tentative ruling which became the final order of the court.

On July 15, 2020, defendant Sagorac filed a judicial council form answer to the complaint alleging a general denial and affirmative defenses.

Currently before the court are separate motions for summary judgment to the complaint filed by defendants Sagorac and Voskerician. Plaintiffs filed written oppositions. Defendant Voskerician filed reply papers.[1]

Trial is set for February 22, 2022.[2]

Sagorac’s Motion for Summary Judgment

Defendant Sagorac moves for an order of summary judgment on the ground there are no triable issues of material fact and thus judgment should be entered as a matter of law.

Plaintiffs’ Request for Judicial Notice

The court declines to address Plaintiffs’ request for judicial notice as defendant Sagorac fails to meet his initial burden on the motion for reasons stated below. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].)  

Plaintiffs’ Evidentiary Objections

In opposition, Plaintiffs object to the declaration submitted by defendant Sagorac. (See Plaintiffs’ Evidentiary Objections at Nos. 1-8.) The objections appear to be well-taken as the declaration lacks personal knowledge and is not signed under penalty of perjury. (See Code Civ. Proc., §§ 437c, subd. (d), 2015.5; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612 [“[C]ourts have made clear that a declaration is defective under section 2015.5 absent an express facial link to California or its perjury laws.”]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217 [declaration not signed under penalty of perjury has no evidentiary value].)

Therefore, Plaintiffs’ evidentiary objections are SUSTAINED.

Legal Standard

Any party may move for summary judgment. (Code of Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civ. Proc., § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)

The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.)

If the moving party makes the necessary initial showing, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “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.” (Aguilar, supra, at p. 850, fn. omitted.) If the party opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)  

Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)

Analysis

Defendant Sagorac argues there is no triable issue of material fact as each claim in the complaint is barred by the statute of limitations.

“A statute of limitations prescribes the period “beyond which a plaintiff may not bring a cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) It “strikes a balance among conflicting interests. If it is unfair to bar a plaintiff from recovering on a meritorious claim, it is also unfair to require a defendant to defend against possibly false allegations concerning long-forgotten events, when important evidence may no longer be available.” (Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797.)

“A plaintiff must bring a claim within the limitations period after accrual of the cause of action. In other words, statutes of limitation do not begin to run until a cause of action accrues. Generally speaking, a cause of action accrues at the time when the cause of action is complete with all its elements.” (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509-510, internal citations and quotation marks omitted.)

“Summary judgment is the appropriate disposition of an action which on its face is barred by a statute of limitations [citation]. However, summary procedure is drastic and should be used with caution and not become a substitute for trial [citation].” (Sevilla v. Stearns-Roger, Inc. (1980) 101 Cal.App.3d 608, 610.)

Similarly, “[w]hile resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

Defendant Sagorac argues the first cause of action is subject to a four-year limitations period for breach of a written contract.

The statute of limitations for breach of written contract “is four years from the time the claim accrues.” (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341.) A breach of contract claim “accrues at the time of breach, which then starts the limitations period running.” (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120; Church v. Jamison (2006) 143 Cal.App.4th 1568, 1583.) “[B]reach of contract ordinarily occurs upon the promisor’s failure to render the promised performance.” (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 958.)

The court notes also that, under California Uniform Commercial Code section 3118, subdivision (a), a special statute of limitations applies to promissory notes, establishing “a six-year statute of limitations, from the final due date, for promissory notes payable at a definite time.” (Cadle co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 514, fn. 8.)

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338, subd. (d).) “This section also codifies the delayed discovery rule, providing that a cause of action for fraud ‘ “is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” ’ [Citations.] The date a complaining party learns, or at least is put on notice, that a representation was false is the date the statute starts running. [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1122-1123.)

Claims for negligent misrepresentation may be subject to a two-year or three-year limitations period. To determine which period applies, courts consider the nature of the right sued upon, not the form of action or the relief demanded. (Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1530.) Where the essence of the claim is negligence, a two-year limitations period applies. (See Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1155 [“A cause of action for negligent misrepresentation is barred by the two-year statute of limitations [citation] where the allegations amount to a claim of professional negligence.”].) But, where the cause of action sounds in fraud, like the one here, a three-year statute of limitation applies. (See Broberg v. The Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 920.) The statute of limitations for negligent misrepresentation also begins to run upon discovery. (Mary Pickford Co. v. Bayly Bros. (1939) 12 Cal.2d 501, 525-526.)

In support, defendant Sagorac submits the following material facts in his separate statement with respect to the statute of limitations issue:

1) The promissory note between Plaintiffs and Sagorac calls for $140,000 to be paid by July 7, 2012;

2) Plaintiffs did not receive payment under the promissory note by or before July 7, 2012;

3) Plaintiffs understood no later than September 6, 2012, that Sagorac was in default under his promissory note with Plaintiffs;

4) Plaintiffs understood no later than September 6, 2012, that the promissory note provided them with legal remedies they could exercise at that time;

5) Plaintiffs knew, as of April or May 2014, the second house of the investment development had been sold;

6) Plaintiffs did not receive any payment under their promissory notes following the sale of the second development house in April or May 2014;

7) There was no agreement to extend the time for enforcement of the promissory note;

8) At no time after Sagorac’s default on the promissory notes in July 2012, was there an agreement to toll or otherwise extend the statute of limitations.

(See Sagorac’s Separate Statement of Undisputed Facts at Nos. 1-8; Sagorac Decl. at ¶¶ 2-9.)

Thus, defendant Sagorac contends Plaintiffs were on notice of their claims against him as early as September 6, 20212 when he was in default under the promissory notes or as late as May 2014 when they did not receive payment following sale of the second developed house. As Plaintiffs did not file their complaint until September 11, 2019, defendant Sagorac asserts the claims are untimely.

Defendant Sagorac however fails to submit admissible evidence in support of his motion for summary judgment. The only evidence consisting of Sagorac’s declaration which is inadmissible as it lacks personal knowledge and is not signed under penalty perjury. (See Plaintiffs’ Evidentiary Objections; see also Code of Civ. Proc., § 437c, subd. (c) [requiring competent, admissible evidence on summary judgment]; Franklin v. Benevolent & Protective Order of Elks (1979) 97 Cal.App.3d 915, 930 [“It is elementary that affidavits in support of a motion for summary judgment shall contain, and may be considered only to the extent they contain, admissible evidence.”]; DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 683 [“Counsel’s unsworn statement is not evidence.”].) Nor is defendant Sagorac relieved of this burden to produce admissible evidence by virtue of his self-representation status. (See Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98 [“[A] litigant appearing in propria persona is generally held to the same restrictive rules and procedures as an attorney.”]; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [“We further note that in propria persona litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.”].)

As defendant Sagorac fails to meet his initial burden on the motion, the court need not consider whether Plaintiffs raise any triable issue of material fact.

Therefore, the motion for summary judgment is DENIED.

Voskerician’s Motion for Summary Judgment

Defendant Voskerician moves for an order of summary judgment on the ground there are no triable issues of material fact in connection with the claims for fraud and negligent misrepresentation and thus judgment should be entered as a matter of law.[3]

Plaintiffs’ Request for Judicial Notice

The court notes that, on January 27, 2022, Plaintiffs filed two separate requests for judicial notice in opposition to the motion for summary judgment filed by defendant Sagorac. As stated above, the court declined to rule on the requests.

In reviewing Plaintiffs’ opposition, in particular the declaration by Plaintiffs’ counsel, she refers to exhibits which are the subject of judicial notice. It is not clear if counsel intended for these exhibits to be included with one of the requests filed on January 27, 2022. Regardless, the court declines to address the request for judicial notice in connection with this motion as it is not relevant to the outcome for reasons stated below.

Plaintiffs’ Evidentiary Objections

In opposition, Plaintiffs filed evidentiary objections. The court declines to make any formal rulings on these objections. As a threshold matter, the objections refer only to portions of defendant Voskerician’s memorandum of points and authorities and statement of facts which do not constitute evidence. (See Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590 [“Matters set forth in points and authorities are not evidence.”]; see also In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11 [“It is axiomatic that the unsworn statements of counsel are not evidence.”].) Even if the objections were proper, the objections are not material in resolving issues raised by the motion for summary judgment. “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. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

Defendant Voskerician’s Evidentiary Objections

In reply, defendant Voskerician submitted objections to evidence in Plaintiff’s opposition papers.

The court OVERRULES the objections to paragraphs 6, 15, 16, 17, 18, 19, and 21 to the declaration of Adrian Dunu.

The court OVERRULES the objections to paragraphs 4, 6, and 7 to the declaration of Catalin Dunu.

The court declines to rule on the remaining objections which are not material to the outcome of the motion.

Analysis

The second cause of action for fraud appears to be a claim for intentional misrepresentation. The third cause of action is a claim for negligent misrepresentation.

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing the harm to the plaintiff. [Citations.]” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, italics omitted.)

Similarly, “a claim for negligent misrepresentation requires the plaintiff to prove each of the following: ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ [Citation.]” (Public Employees’ Retirement System v. Moody’s Investors Service, Inc. (2014) 226 Cal.App.4th 643, 661.)

Defendant Voskerician argues these claims are subject to a motion for summary judgment because: (1) Plaintiffs cannot show that Voskerician made any statement alleged to be a misrepresentation; (2) any statements by Voskerician constitute non-actionable statements of opinions regarding future events; and (3) the claims are barred by the statute of limitations.

Misrepresentations

Defendant Voskerician contends Plaintiffs have no evidence demonstrating he made any misrepresentation to them to support claims for fraud and negligent misrepresentation.

According to the complaint, on or about May 7, 2011, Plaintiffs allege Defendants made the following representations to them: (1) an investment in the Property was a safe and sound investment; (2) Defendant Sagorac would repay their investments by July 7, 2012 of $140,000 each; and (3) that defendant Dixon Development Company, LLC owned the Property and would pledge a 5% profit share in the company to each plaintiff. (Complaint at ¶¶ 11, 24.)

Plaintiffs also allege, from mid-2014 and continuing through 2019, Defendants promised that Sagorac would repay the Notes but represented that they needed “to work some issues out” because one of Defendants’ partners took all the sale proceeds from the Property and, accordingly, there was no money to disperse and the Property was tied up in litigation. (Complaint at ¶ 25.)

In support, defendant Voskerician submits various excerpts from each plaintiff’s deposition testimony to show there was no evidence of any misrepresentation to establish fraud or negligent misrepresentation. (See Defendant Voskerician’s Separate Statement of Undisputed Facts at Nos. 1, 3, 5, 7, 9, 11, 13-16, 17, 19, 21, 23, 25, 27, 29-32.)

The deposition testimony however falls short of disposing of this element on summary judgment. As a preliminary matter, some of the cited deposition pages are missing from defendant Voskerician’s evidence, including page 217:12-17 from plaintiff Adrian Dunu’s deposition and pages 98:21-99:5 and 123:8-13 from plaintiff Catalin Dunu’s deposition. Also, the evidence does not address the specific representations set forth in the complaint. Instead, defendant Voskerician appears to suggest that, because Plaintiffs cannot recall details (or exact words) from their exchanges or conversations with him, that there is no basis for a misrepresentation. The moving papers do not cite any legal authority to support this position. Rather, the authority cited refers to a plaintiff’s burden in asserting a fraud claim against a corporation which is not applicable here. (See Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645 [fraud against a corporate employer].) In fact, at least one California appellate court holds that, “[t]he law does not require that one prove the representations precisely as alleged. All that he need do is to prove the substance and material parts of such representations.” (Bailey v. Yosemite Portland Cement Corp. (1933) 136 Cal.App. 111, 114.) While an older decision, this case remains good law in California.

Furthermore, the deposition testimony reveals that defense counsel, while at times requesting Plaintiffs to provide exact words during their communications with defendant Voskerician, also asked them to provide general information about such exchanges which Plaintiffs did. (See Rossi Decl. at Ex. A [Adrian Dunu Depo at pp. 250-251].) Having done so, the court finds there is, at a minimum, some evidence to establish a misrepresentation to support claims for fraud and negligent misrepresentation.

Non-Actionable Statements of Opinion

To the extent there are any misrepresentations, defendant Voskerician argues such statements constitute non-actionable opinion regarding future events.

“Fraudulent representations, to constitute ground for relief, must be as to existing and material facts; predictions of future events are ordinarily considered nonactionable expressions of opinion. [Citations.]” (Richard P. v. Vista Del Mar Child Care Service (1980) 106 Cal.App.3d 860, 865.)

“Exceptional circumstances resulting in expressions of opinion being treated as misrepresentations have been found where the one expressing the opinion does not in fact entertain it [citations]; where the opinion amplifies false representations of fact [citation]; where the opinion is expressed in a manner implying a factual basis which does not exist [citation]; where the opinion is expressed as a fact [citation]; and where the expression of opinion is made by a party ‘possessing superior knowledge’ [citations].” (Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 211 (Pacesetter).)

Where there is a reasonable doubt as to whether a particular statement is an expression of opinion or the affirmation of fact, the determination rests with the trier of fact. (Pacesetter, supra, 5 Cal.App.3d at p. 212.)

As a preliminary matter, the motion does not address any alleged statements by defendant Voskerician in connection with this argument for the period of time beginning in mid-2014 through 2019. (See Complaint at ¶ 25; see also Dromy v. Lukovsky (2013) 219 Cal.App.4th 278, 282 [“The issues raised by a motion for summary judgment are framed by the pleadings.”].) This argument fails on that basis alone. Instead, defendant Voskerician focuses on the alleged representation that Plaintiffs’ investment in the Property would be a safe and sound investment. (Id. at ¶ 24.) To that end, he contends, relying on deposition testimony from plaintiff Adrian Dunu, that Plaintiffs understood this statement regarding the investment to be his opinion. (See Defendant Voskerician’s Separate Statement of Undisputed Facts at Nos. 43, 54.) First, this evidence does not pertain to plaintiff Catalin Dunu’s understanding of the statement as it involves testimony from plaintiff Adrian Dunu. Furthermore, Plaintiffs have submitted additional deposition testimony from plaintiff Adrian Dunu disputing whether the alleged statement constitutes an opinion. (See Plaintiffs’ Disputed Fact at No. 43 [Plaintiff Adrian Dunu Depo at p. 212:15-213:19].)

Defendant Voskerician also contends he had no control over Plaintiffs’ investment money, Dixon LLC, the sale of the Property, or defendant Sagorac’s obligation under the Notes. (See Defendant Voskerician’s Separate Statement of Undisputed Facts at Nos. 37-42, 48-53.) He also asserts Plaintiffs have no basis for treating his remarks regarding the investment as fact because he has no education, training, or experience in real estate development. (Id. at Fact Nos. 44-47.) But, a trier of fact may conclude that, based on the friendship of the parties and Voskerician’s previous investment dealings with Sagorac, Plaintiffs were justified in relying on representations by him as fact with respect to investing in the Property. (See Plaintiffs’ Additional Facts at Nos. 26-38.) Regardless, a reasonable doubt exists as to whether such representations should be treated as opinions which should be resolved by the trier of fact.

The court therefore finds the alleged statements sufficiently support the claims for fraud and negligent misrepresentation.

Statute of Limitations

Finally, defendant Voskerician argues the claims for fraud and negligent misrepresentation are barred by the statute of limitations. Defendant Voskerician contends Plaintiffs were aware of the default on the promissory note and thus any representations related to that no later than September 6, 2012. (See Defendant Voskerician’s Separate Statement of Undisputed Facts at Nos. 55-71.) As Plaintiffs did not file the complaint until September 11, 2019, defendant Voskerician asserts the claims are beyond the three-year limitations period and therefore untimely.

Plaintiffs however allege that, under the Notes, they agreed to extend the time for payment until construction was completed and the Property was sold. (See Complaint at ¶¶ 13, 15.) Defendant Voskerician argues there is no evidence of any written agreement by Plaintiffs to extend the time for payment. But, this contention is not supported by any material facts or supporting evidence in the separate statement. Furthermore, the claims for fraud and negligent misrepresentation include representations made during the period beginning in mid-2014 through 2019. (See Complaint at ¶¶ 25, 31.) The moving papers do not address the statute of limitations argument in connection with these allegations. This is critical since a misrepresentation made in 2017, 2018, and 2019 would fall within the three-year period and be considered timely.

As a consequence, the court cannot resolve the statute of limitations issue for purposes of this motion.

Accordingly, the motion for summary judgment is DENIED.

Disposition

The motions for summary judgment to the complaint are DENIED.

The court will prepare the Order.

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[1] The court declines to consider the declaration submitted by counsel for Voskerician in the reply as it constitutes new evidence submitted for the first time with the reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [the general rule of motion practice is that new evidence is not permitted with reply papers]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [improper to introduce new evidence in reply].)   

[2] Plaintiffs have filed a motion to continue the trial also being heard on February 10, 2022.

[3] The first cause of action for breach of the promissory notes is alleged only against defendant Sagorac.

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