Hadar v. Luria CA1/3 ( 2023 )

Filed 2/15/23 Hadar v. Luria CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SHACHAR M. HADAR et al.,
Plaintiffs and Respondents,
A161387
v.
GERSHON LURIA, (Contra Costa County
Super. Ct. No. C16-00396)
Defendant and Appellant.
Defendant Gershon Luria (Luria), appearing in pro per, appeals from
an order granting summary adjudication in favor of plaintiffs Shachar Hadar
and Esther Kolyer on their cause of action for partition of real property.
Luria contends summary adjudication should have been denied because he
raised a triable dispute over the parties’ respective ownership interests in the
subject property; he disputed the existence of a valid agreement to sell the
property; he presented evidence of an agreement to hold the property for 10
years from the date of purchase; and he presented evidence raising a triable
issue that plaintiffs should be prevented from obtaining equitable relief
under the doctrine of unclean hands. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the operative first amended complaint, plaintiffs own an
undivided 50 percent tenancy-in-common interest in property located in
Richmond (the Property). Defendants Luria and his wife, Irit Sanger, own
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the remaining undivided 50 percent interest. In their first cause of action,
plaintiffs describe the Property and the parties’ respective ownership
interests and request that the Property be partitioned by sale. They allege
partition by sale “is more equitable” because the Property “consists of a single
building which is not susceptible to physical division.” In their second cause
of action, plaintiffs allege that defendants, in performing management duties
over the Property, breached their fiduciary duties to plaintiffs by failing to
maintain and preserve an accurate account of the income and expenses
associated with management of the Property; by expending income generated
from the Property for expenses not reasonably related thereto; and by
retaining income from the Property beyond the agreed-upon compensation for
management duties.
In a prior appeal, this court reversed an order granting summary
adjudication in favor of plaintiffs on their partition claim. (Hadar v. Luria
(May 15, 2019, A153420) [nonpub. opn.] (Hadar I).) Luria had opposed the
motion by submitting a declaration stating that the parties had agreed to
hold the Property for a minimum of 10 years from the date of purchase.
(Ibid.) Plaintiffs objected to Luria’s declaration on the ground that it failed to
state the place of execution as required under Code of Civil Procedure section
2015.5. (Hadar I.) Plaintiffs also argued that the evidence did not raise a
triable issue of material fact because an agreement to waive the right of
partition had to be in writing under the statute of frauds. (Ibid.) In
reversing the trial court’s grant of summary adjudication, we concluded the
declaration sufficiently complied with Code of Civil Procedure section 2015.5.
We remanded the matter for further proceedings, noting the trial court had
declined to reach the statute of frauds issue due to its ruling on the
declaration. (Hadar I.)
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Following remand, plaintiffs again moved for summary adjudication of
their partition claim. In support, they submitted evidence to establish the
following facts and conclusions: (1) in January 2011, the parties purchased
the Property—a multiunit apartment building in Richmond—with each side
owning an undivided 50 percent interest; (2) there was no written agreement
between the parties waiving plaintiffs’ right of partition; (3) in January 2016,
Hadar sent an email to Luria memorializing a telephone conversation
between them in which Luria “stated that if we decide[d] to sell the property,
you are OK with that”; and (4) due to the location and characteristics of the
Property, partition in kind would be impractical and less equitable to the
parties on both sides.
According to Hadar’s supporting declaration, the parties agreed that
Luria would manage the Property for a management fee of 10 percent of the
gross rents. The parties “initially agreed that ownership of the Property
would be transferred to a limited liability company, in which the four of us
were co-equal members, but that plan was never executed after Mr. Luria
changed his mind. There was never any express or implied agreement
between Plaintiffs and Defendants, or any of them, whereby it was agreed
that the Property would be owned for a required period of time or that the
Property could not be sold until a particular date.” Hadar further averred
that “difficulties in the relationship between the co-owner couples developed”
due to Luria’s “ ‘management’ of the Property,” including his “apparent
misappropriation of funds” and insufficient reporting of financial matters.
Also, “Mr. Luria’s propensity for conflict with tenants at the Property . . . led
to multiple lawsuits being filed either against Mr. Luria individually or all
co-owners collectively.” Hadar stated that in January 2016, he and Luria
agreed during a telephone call—later memorialized in an email—“that if
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Plaintiffs wanted to sell the Property that this would be acceptable.”
(Underscore omitted.) In response to the email, Luria did not dispute he was
amenable to plaintiffs selling the Property. Instead, Luria stated he had
“specifically promised you [Hadar] this before we purchased, and as I hope
you and Esther know that I always keep my word, because I believe this is
‘ “good business.” ’ ”
Hadar further averred that because of “the physical characteristics of
the Property and the density of the existing structure on a narrow lot in a
densely built-out residential neighborhood,” partition of the Property in kind
was “totally impractical. Nor has it been suggested by Defendants or by
anyone that an in-kind division of the Property could be accomplished, by
partition or otherwise.”
Defendants opposed the motion, arguing that under Summers v.
Superior Court (2018) 24 Cal.App.5th 138 (Summers), any disputes regarding
ownership of the Property had to be determined in a trial before a partition
by sale could be ordered. According to defendants, there was indeed an
ownership dispute because in March 2016, in case No. C16-00579, defendants
sued plaintiffs for breach of fiduciary duty, abuse, and unjust enrichment and
“demand[ed] the transfer of title to us.” Defendants further disputed the
existence of an agreement to sell the Property, arguing that Luria was not
authorized to make a commitment to sell on behalf of his wife. Defendants
reiterated their argument from the first summary adjudication motion that
the parties had agreed to hold the Property for at least 10 years.
Defendants also argued there was a triable issue of material fact that
plaintiffs should be denied equitable relief because of their unclean hands.
According to defendants, Hadar had breached fiduciary duties to defendants
by opening a limited liability company (GLSH Properties) in March 2011
4
without defendants’ awareness or consent and keeping it open for several
years; Hadar falsely stated in his summary adjudication declaration that the
parties’ plan to open the limited liability company “ ‘was never executed’ ”
when, in fact, it was partially executed; Hadar gave “false, fabricated
testimony to the insurance company” in a tenant’s lawsuit against Luria
(Freeman v. Luria) that Luria had caused a “ ‘personal vendetta’ ” with the
tenant; and in another tenant lawsuit (Brawly v. Luria), plaintiffs made
several filings in an effort “to sever the link between themselves and the
lawsuit, and sign[ed] a settlement agreement in the case, all without the
agreement or awareness of” defendants.
Plaintiffs filed reply papers, including several objections to defendants’
evidence.
The trial court granted plaintiffs’ motion for summary adjudication and
ordered that the Property be partitioned by sale, finding plaintiffs and
defendants each have a 50 percent undivided interest in the Property. In
concluding there was no triable dispute as to the parties’ ownership interests,
the court rejected defendants’ attempt to manufacture a triable issue based
on the allegations of the complaint in case No. C16-00579.1 In rejecting
defendants’ claim of waiver, the court found it was undisputed that there was
no written agreement to hold the Property for 10 years and held that any oral
agreement to do so was unenforceable under the statute of frauds. The court
additionally found that any claimed oral agreement was modified by the
1 Although the trial court granted defendants’ request for judicial notice
of the complaint in case No. C16-00579 and explained that case No. C16-
00579 had “been consolidated with the case at bar,” the complaint is not
included in the appellate record before us. (See Pringle v. La Chapelle (1999)
73 Cal.App.4th 1000, 1003 [appellant has burden to show error on sufficient
record, and where record is incomplete, we must presume trial court correctly
relied on matters not before us].)
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January 2016 email in which Hadar memorialized Luria’s consent to the sale
of the Property. Finally, the trial court found there was no triable issue as to
defendants’ unclean hands defense, as the allegations of plaintiffs’
misconduct were unrelated to the relief sought in the instant partition action.
According to the trial court, the allegations of misconduct may or may not
subject plaintiffs to liability for damages, but they are not a basis for denying
the equitable right of partition.
The trial court’s order included rulings on plaintiffs’ evidentiary
objections in which the court sustained objections to several portions of
Luria’s declaration and the attached exhibits.
Luria filed a timely notice of appeal. (Code Civ. Proc., § 904.1,
subd. (a)(9) [appeal may be taken from interlocutory judgment in action for
partition].)2
DISCUSSION3
A plaintiff may move for summary adjudication of a cause of action by
establishing it is entitled to judgment on the cause of action. (Code Civ.
Proc., § 437c, subds. (f), (p); Taswell v. Regents of University of California
(2018) 23 Cal.App.5th 343, 350 (Taswell).) If the moving party meets its
burden to prove each element of the cause of action, the burden shifts to the
defendant to show that a triable issue of material fact exists as to the cause of
2 Luria’s codefendant, Irit Sanger, did not appeal the trial court’s
decision.
3 Plaintiffs argue, and we agree, that Luria’s appellate briefs repeatedly
fail to support factual assertions with citations to the clerk’s transcript by
volume and page number, as required by California Rules of Court, rule
8.204(a)(1)(C). Although we may decline to consider factual assertions that
do not comply with this rule (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868),
and we in no way condone Luria’s noncompliance, we will exercise our
discretion to overlook the noncompliance.
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action. (Code Civ. Proc., § 437c, subd. (p)(1).) We review orders granting
summary adjudication de novo. (Taswell, at p. 350.) In doing so, we liberally
construe the evidence and resolve all evidentiary doubts in favor of the party
opposing the motion. (Garrett v. Howmedica Osteonics Corp. (2013) 214
Cal.App.4th 173, 181.)
A. Partition Generally
“ ‘ “[P]artition” [is] “the procedure for segregating and terminating
common interests in the same parcel of property.” ’ [Citation.] It is a
‘ “ ‘remedy much favored by the law. The original purpose of partition was to
permit cotenants to avoid the inconvenience and dissension arising from
sharing joint possession of land. An additional reason to favor partition is
the policy of facilitating transmission of title, thereby avoiding unreasonable
restraints on the use and enjoyment of property.’ ” ’ ” (Summers, supra, 24
Cal.App.5th at p. 142.)
To state a cause of action for partition, “[t]he complaint shall set forth:
(a) A description of the property that is the subject of the action. . . . In the
case of real property, the description shall include both its legal description
and its street address or common designation, if any. [¶] (b) All interests the
plaintiff has or claims in the property. [¶] (c) All interests of record or
actually known to the plaintiff that persons other than the plaintiff have or
claim in the property and that the plaintiff reasonably believes will be
materially affected by the action, whether the names of such persons are
known or unknown to the plaintiff. [¶] (d) The estate as to which partition is
sought and a prayer for partition of the interests therein. [¶] (e) Where the
plaintiff seeks sale of the property, an allegation of the facts justifying such
relief in ordinary and concise language.” (Code Civ. Proc., § 872.230.)
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“At the trial, the court shall determine whether the plaintiff has the
right to partition.” (Code Civ. Proc., § 872.710, subd. (a).) “If the court finds
that the plaintiff is entitled to partition, it shall make an interlocutory
judgment that determines the interests of the parties in the property and
orders the partition of the property and, unless it is to be later determined,
the manner of partition.” (Code Civ. Proc., § 872.720, subd. (a).) The order of
partition “shall order that the property be divided among the parties in
accordance with their interests in the property as determined in the
interlocutory judgment.” (Code Civ. Proc., § 872.810.) However, “[i]n lieu of
dividing the property among the parties, the court shall order the property be
sold and the proceeds divided among the parties in accordance with their
interests in the property if the parties agree to such relief or the court
determines sale and division of the proceeds would be more equitable than a
division of the property.” (LEG Investments v. Boxler (2010) 183 Cal.App.4th
484, 493 (LEG Investments), citing Code Civ. Proc., § 872.820.)
B. Dispute Over Ownership Interests
In a partition action, “[t]he interests of the parties, plaintiff as well as
defendant, may be put in issue, tried, and determined in the action.” (Code
Civ. Proc., § 872.610.) In Summers, Division One of this court held that the
partition statutes do not allow a trial court to order the manner of a
property’s partition before it determines the ownership interests in the
property. (Summers, supra, 24 Cal.App.5th at p. 140.) Here, the undisputed
evidence established—and the trial court found—that each couple in this
matter had an undivided 50 percent interest in the Property.
Luria nonetheless maintains there is a triable dispute over the parties’
ownership interests because defendants’ complaint in case No. C16-00579
demanded transfer of title to the entire Property to them. However, because
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the record on appeal does not include a copy of the complaint in case No. C16-
00579, we are unable to ascertain what allegations and claims supposedly
entitled defendants to title to the Property. (See Christie v. Kimball (2012)
202 Cal.App.4th 1407, 1412 [error not presumed where review is hampered
by appellant’s failure to produce full record].)4 More importantly, Luria
cannot simply “rely upon the allegations or denials of [the] pleadings to show
that a triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to the
cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)
And if this were not enough, Luria appears to have conceded both below and
on appeal that the parties on each side of this dispute are 50 percent co-
owners of the Property.
In short, Luria fails to demonstrate the existence of a triable dispute as
to the parties’ ownership interests in the Property.
C. Alleged Waiver of Right of Partition
“[P]artition, which is frequently denominated an absolute right
[citation], is subject to waiver, and also to estoppel and similar equitable
defenses.” (Thomas v. Witte (1963) 214 Cal.App.2d 322, 327.) The right may
4 Even if we assumed that the allegations of Hadar’s breaches of
fiduciary duty raised in this appeal (e.g., creating a limited liability
corporation without Luria’s consent; making false statements and self-
interested filings in the tenant lawsuits) were also the bases for defendants’
complaint in case No. C16-00579, Luria fails to provide cogent argument
supported by legal authority that these acts would entitle defendants to
complete title to the Property. (See Murphy v. Murphy (2008) 164
Cal.App.4th 376, 405 [failure to cite pertinent legal authority is enough
reason to reject argument]; In re Marriage of Schroeder (1987) 192
Cal.App.3d 1154, 1164 [where appellant presents no cogent argument or
citation to authority court may treat point as waived].)
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be waived by express or implied contract. (LEG Investments, supra, 183
Cal.App.4th at p. 493.)
Defendants attempted to raise a triable dispute regarding plaintiffs’
waiver of their right of partition by submitting Luria’s declaration that he
and Hadar “agreed to hold the property for at least 10 years [from the date of
purchase] and took a 10-year fixed rather expensive (6.6% interest) loan for
this purpose.” Notably, this statement followed a recitation of several other
terms negotiated between Hadar and Luria “[a]ccording to the verbal
agreement,” suggesting the promise to hold the property was also verbal. On
this score, the trial court concluded that defendants’ evidence of an “oral
agreement” was unenforceable under the statute of frauds, citing Code of
Civil Procedure section 1971 and Civil Code section 1624. Luria does not
challenge this ruling on appeal; nor does he otherwise suggest that the
purported agreement to hold the Property for 10 years was reduced to
writing.
Instead, Luria denies there was a valid agreement to sell the Property.
Specifically, Luria contends that despite Hadar’s January 2016 email
purporting to memorialize Luria’s agreement to sell, the agreement was not
valid because Luria could not agree to a sale on behalf of his wife. But this
evidence, even if credited, fails to raise a triable issue of material fact because
defendants’ agreement to sell is not required for plaintiffs to exercise their
unwaived right of partition. As co-owners, plaintiffs have an absolute right of
partition, and the trial court could order the Property sold if it determined
that sale and division of the proceeds would be more equitable than an in-
kind division. (LEG Investments, supra, 183 Cal.App.4th at p. 493; Code Civ.
Proc., § 872.820.) And though plaintiffs argued and submitted evidence
below showing that partition by sale would be more equitable than partition
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in-kind, defendants offered no argument or evidence to dispute this.
Accordingly, even if we assumed there was no January 2016 agreement to
sell the Property, this would have no effect on plaintiffs’ right to seek
partition of the Property by sale.
For these reasons, we conclude Luria has not demonstrated the
existence of a triable issue of material fact with respect to plaintiffs’ supposed
waiver of their right of partition.
D. Unclean Hands
Luria contends the evidence raised a triable issue of material fact that
plaintiffs are barred from partition under the doctrine of unclean hands due
to their alleged breaches of fiduciary duty.
“The doctrine of unclean hands prevents a party from obtaining either
legal or equitable relief when that party has acted inequitably or with bad
faith relative to the matter for which relief is sought.” (People v. Wickham
(2013) 222 Cal.App.4th 232, 238.) “[I]t is an equitable rationale for refusing a
plaintiff relief where principles of fairness dictate that the plaintiff should
not recover, regardless of the merits of his [or her] claim.” (Kendall-Jackson
Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 985.)
However, “it is not every wrongful act nor even every fraud which
prevents a suitor in equity from obtaining relief. The misconduct which
brings the clean hands doctrine into operation must relate directly to the
transaction concerning which the complaint is made, i.e., it must pertain to
the very subject matter involved and affect the equitable relations between
the litigants. Accordingly, relief is not denied because the plaintiff may have
acted improperly in the past or because such prior misconduct may indirectly
affect the problem before the court.” (Fibreboard Paper Products Corp. v.
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East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 728–729
(Fibreboard Paper).)
As a threshold matter, plaintiffs contend the doctrine of unclean hands
is not a defense to partition as a matter of law because the partition statutes
refer only to a valid waiver as barring the right of partition. We need not
resolve this question, for even assuming unclean hands may bar the right of
partition, we conclude defendants failed to submit evidence demonstrating a
triable issue of material fact on their unclean hands defense.
The allegations of plaintiffs’ unclean hands can be boiled down to two
categories of conduct. First, Hadar purportedly created and operated GLSH
Properties for five years, with Luria as a manager, but without Luria’s
awareness or consent. Second, Hadar supposedly made false statements to
an attorney representing an insurance company in connection with a tenant
lawsuit (Freeman v. Luria), resulting in an increased demand by the tenant
and “significant financial damages to the partnership,” and furthermore,
plaintiffs made several filings in another tenant lawsuit (Brawly v. Luria)
and signed “an uncalled-for compromise” agreement without informing
defendants, resulting in increased insurance premiums.
As plaintiffs point out, however, Luria either fails to support these
allegations with citations to the record or cites to evidence that was excluded
after the trial court sustained objections to the Luria declaration and related
exhibits. For instance, the allegation that Hadar made statements to an
attorney in Freeman v. Luria that caused “significant financial damages to
the partnership” is unsupported by citation to the record other than two
exhibits to Luria’s declaration that were excluded by the trial court. And
Luria’s claim that plaintiffs’ filings in Brawly v. Luria and execution of a
settlement agreement caused insurance premiums to increase was likewise
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based on an excluded exhibit. Luria does not challenge the evidentiary
rulings on appeal, and accordingly, he has forfeited any arguments that the
trial court abused its discretion in excluding this evidence. (Gombiner v.
Swartz (2008) 167 Cal.App.4th 1365, 1374–1375.)
What remains are vague accusations that Hadar failed to disclose the
truth about GLSH Properties to Luria, and that plaintiffs made several
unspecified filings in one of the tenant lawsuits. But this evidence was
insufficient to raise a triable issue of material fact of plaintiffs’ unclean
hands. As the trial court aptly observed, even if the alleged conduct was
tangentially related to the subject matter of the partition complaint, it did
not affect the equitable relations between the litigants as to the Property.
(Fibreboard Paper, supra, 227 Cal.App.2d at pp. 728–729.)
Aguayo v. Amaro (2013) 213 Cal.App.4th 1102 (Aguayo) is instructive.
There, the plaintiff sought to quiet title to real property based on her claim of
adverse possession. (Id. at p. 1105.) The appellate court affirmed the trial
court’s finding that the unclean hands doctrine barred the plaintiff from
asserting adverse possession because she and her husband had fraudulently
recorded a quitclaim deed transferring the property to themselves and
directed that tax statements be mailed to them so they could pay the taxes on
the property in order to satisfy the requirement of adverse possession. (Id. at
pp. 1113–1114.) In other words, the plaintiff’s deceitful conduct related
directly to one of the required elements for her claim of adverse possession to
the property at issue. Aguayo held that “[t]his is the kind of bad faith,
unconscionable conduct that a trial court, sitting as a court of equity, can
reasonably conclude is sufficient to invoke the doctrine of unclean hands.”
(Ibid.)
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By contrast, Luria fails to provide any cogent argument that Hadar’s
conduct constituted bad faith or unconscionable conduct that similarly
affected the equitable rights of the parties. While Hadar acknowledged in his
declaration that there were initial discussions among the parties to transfer
the Property to a limited liability corporation, there was no contention or
evidence that the Property was indeed transferred to GLSH Properties
without Luria’s awareness or consent. To the contrary, it is undisputed that
the parties remain 50 percent co-owners of the Property. Thus, even if we
fully indulged the inference that Hadar once harbored a secret intent to “gain
control [of] the property by means of the illegally filed LLC” as Luria
contends, the plan never came to fruition. Nor has Luria demonstrated with
admissible evidence how plaintiffs’ conduct affected his or his wife’s rights in
the Property. At bottom, the evidence is undisputed that plaintiffs are co-
owners of the Property entitled to a right of partition and that partition by
sale would be more equitable than partition in kind. Thus, even assuming
the truth of the misconduct allegations concerning GLSH Properties and the
tenant lawsuits, defendants fail to show that the misconduct had any effect
on the equitable relations between the parties on the controversy before the
court—i.e., whether an interlocutory judgment to partition the Property
should issue.
Luria nonetheless maintains that “the clear and serious incidents of
breaches of fiduciary duty by [Hadar]” are directly related to the partition
action because those acts “were the main cause for the subject motion
regarding the dissolution of [the] otherwise highly financially successful
partnership.” We disagree. While the parties’ accusations of misconduct
against one another provide context for their falling out, they do not affect
the parties’ equitable rights given the undisputed nature of plaintiffs’
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unwaived right of partition. If anything, a partition by sale in this case
would further the remedy’s original purpose—to avoid the dissension arising
from the parties’ joint possession of property. (Summers, supra, 24
Cal.App.5th at p. 142.)
Luria also accuses plaintiffs of “not act[ing] as partners working for the
benefit of the partnership” and “seek[ing] to enrich themselves on the backs
of the Lurias,” as well as “attempt[ing] to sever their ties to the partnership
at a time when they believed that this was in their best interests.” But Luria
again fails to provide any cogent argument or supporting authority that such
claimed acts of self-interest constitute “the kind of bad faith, unconscionable
conduct that a trial court, sitting as a court of equity, can reasonably
conclude is sufficient to invoke the doctrine of unclean hands.” (Aguayo,
supra, 213 Cal.App.4th at pp. 1113–1114.)
On this record, we agree with the trial court that defendants did not
raise a triable issue of material fact on their unclean hands defense so as to
bar summary adjudication on plaintiffs’ claim for partition by sale.
E. Remaining Arguments
We proceed to dispose of Luria’s remaining arguments. He contends
there are triable issues of material fact because Hadar made several false
statements in his supporting declaration that: (1) the parties’ plan to
transfer ownership of the Property to an LLC was “never executed” when, in
fact, the plan was partially executed; (2) Luria’s management of the Property
was deficient; (3) there were “significant issues” regarding Luria’s
misappropriation of funds and reporting of financial matters relating to the
Property; (4) Luria had a propensity for conflict with tenants at the Property,
which led to multiple lawsuits; and (5) the parties’ “difficulties” led to
numerous discussions. But Luria fails to explain how the claimed falsity of
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such statements raises a triable issue of fact that is material to the partition
claim. To the extent Luria makes these accusations solely to challenge
Hadar’s credibility, this is insufficient by itself to preclude summary
adjudication. (See Code Civ. Proc., § 437c, subd. (e) [summary judgment or
adjudication shall not be denied on grounds of credibility except where
declarant was sole witness or where material fact is declarant’s state of
mind].)
Next, Luria argues that plaintiffs’ motion was procedurally defective
because it lacked a declaration under Code of Civil Procedure section 437c,
subdivision (t). This argument wholly misses the mark. Plaintiffs did not
move for summary adjudication under subdivision (t), which permits a
summary adjudication motion that “does not completely dispose of a cause of
action, affirmative defense, or issue of duty” under circumstances that were
not met here. (Code Civ. Proc., § 437c, subd. (t)(1)(A)(ii).) Rather, the
summary adjudication motion was appropriately brought under Code of Civil
Procedure section 437c, subdivision (f), because plaintiffs sought to
completely dispose of their partition cause of action. Accordingly, plaintiffs’
compliance with Code of Civil Procedure section 437c, subdivision (t)(1)(A)(ii),
was not required.
Finally, Luria argues that plaintiffs were not permitted to bring a
second motion for summary adjudication without showing new or different
facts, circumstances, or law. He is mistaken. Under Code of Civil Procedure
section 437c, subdivision (f)(2), “[a] party shall 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.”
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Here, however, the trial court granted plaintiffs’ first summary adjudication
motion after sustaining a procedural objection to Luria’s declaration, only for
the evidentiary ruling to be reversed on appeal and the matter remanded for
further determination of issues that were left unaddressed by the trial court
on the first motion. Simply put, plaintiffs’ second summary adjudication
motion was not an improper attempt to seek reconsideration of issues already
decided against them on a prior motion.
DISPOSITION
The order granting plaintiffs’ motion for summary adjudication is
affirmed. Plaintiffs shall receive their costs on appeal.
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
RODRÍGUEZ, J.
Hadar et al. v. Luria (A161387)
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