Motion for Summary Judgment and/or Adjudication
“Attorney’s fees are not available to a prevailing litigant absent a contractual agreement or statutory authorization....” (Abbett Electric Corp. v. California Fed. Savings & Loan Assn. (1991) 230 Cal.App.3d 355, 358.) Here, as Wild Rivers has neither identified an applicable statute which provides for recovery of attorneys’ fees, nor demonstrated that it is the prevailing party on a contract with an attorney fee provision, the motion for attorney fees must be DENIED.
57 Austin vs. Hyundai Motor America
25-01257746
1. Motion for Attorney Fees 2. Motion to Strike or Tax Costs
The Court intends to post a Tentative Ruling in the morning. 58 Ally Bank vs. Bashir
26-01538983
Application/Request
Plaintiff Ally Bank’s unopposed Application for Writ of Possession against Defendant Ibrahim Bashir for the 2015 BMW I8 motor vehicle, Serial No. WBY2Z2C55FV392288 (the “Vehicle”) is GRANTED.
The Court ORDERS Defendant Ibrahim Bashir to turn over to Plaintiff the Vehicle which is believed to be located at 5517 Sugar Maple Way, Fontana, CA 92336. The failure to turn over the Vehicle to Plaintiff may subject Defendant to being held in contempt of court. The Court waives the requirement for Plaintiff to post an undertaking since the amount owed is higher than the estimated value of the Vehicle.
Defendant’s re-delivery bond shall be $42,977.25.
Moving Party is to give notice.
60 Hernandez vs. Dieterich
22-01246551
Motion for Summary Judgment and/or Adjudication
Defendant George Ahad, M.D.’s motion for summary judgment is DENIED.
Defendant Dr. Ahad moves for summary judgment, only. The request for summary judgment is improper as this motion does not seek to dispose of all causes of action asserted against Defendant in the Complaint by Plaintiff. (Miles Laboratories, Inc. v. Superior Court (1982) 133 Cal.App.3d 587, 593 [“A defendant moving for summary judgment has the burden of making a factual showing negating the existence of all causes of action on all theories embodied in the complaint and if he fails to discharge that burden, the motion must be denied”];
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Here, Plaintiff’s operative Complaint contains two causes of action. (ROA 2.) The two causes of action are: (1) medical negligence; and (2) negligence.
The 1st cause of action for medical negligence is against “all defendants.” However, the 2nd cause of action for negligence – failure to adequately screen medical staff - is against “Defendants AHMC Anaheim Regional Medical Center, Anaheim Clinic for Women and Employees and Does 1-25, inclusive.” (Bold added.)
Dr. Ahad contends only the 1st cause of action for medical negligence is brought against him, thus he need not address the 2nd cause of action. However, on 9/25/24, Plaintiff filed an Amendment to Complaint (Doe 2), naming Defendant George Ahad MD as Doe 2. (ROA No. 100.) Thus, Dr. Ahad’s argument that he is not named in the 2nd cause of action and therefore does not need to address it is incorrect, as the 2nd cause of action specifies it is against Doe 2, and others.
Dr. Ahad, as moving party, bears the burden of persuasion and must make a prima facie showing that that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) But by failing to address the 2nd cause of action, he has failed to meet his burden.
Further, Dr. Ahad cannot save his motion for summary judgment by pivoting to one for summary adjudication as to both causes of action because that is beyond the Notice of Motion. For due process reasons, the court may not grant summary adjudication where the only motion noticed for hearing is for summary judgment. (See, e.g., Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.)
In addition, on a motion for summary adjudication, the “specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Rules of Court, Rule 3.1350(b) and Truong v. Glasser (2010) 181 Cal.App.4th 102, 118 [separately identified issues not required on motion for summary judgment].) Dr. Ahad has failed to comply with the summary adjudication requirements.
As noted by one court: “Section 437c is a complicated statute. There is little flexibility in the procedural imperatives of the section, and the issues raised by a motion for summary judgment (or summary adjudication) are pure questions of law. As a result, section 437c is unforgiving; a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607 (parentheses in original).)
Accordingly, the motion for summary judgment must be DENIED.
The Court DECLINES TO RULE on the objections submitted by both parties as they were not material to the disposition of this motion. (Code of Civ. Proc. § 437c, subd. (q).)