Sunnyside Cremation and Funeral Inc. vs. California Mortuary Group, Inc.

The Court grants in part Defendants California Mortuary Group, Inc., and Yung M. Jung ’s Motion for summary adjudication of Plaintiff Sunnyside Cremation and Funeral Inc.’s First Amended Complaint (FAC). Specifically, the Court grants summary adjudication as to the second cause of action for intentional interference with contracts, which are issues 4 and 5 (identified in the Notice of Motion as numbers 7 and 8). The remainder of the Motion is denied.

Late Opposition Plaintiff filed its opposition with 18 days’ notice.

All opposition papers must be served on the moving party and filed with the court at least 20 days before the date set for hearing on the motion, unless the court shortens the time for good cause shown. (CCP § 437c(b)(2) (amended eff. 1/1/25)]

A court has discretion to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765,—court had discretion to refuse to consider “surrebuttal” brief and supplemental expert declaration filed on day of hearing without any explanation for late submission; Mackey v. Board of Trustees of Calif. State Univ. (2019) 31 Cal.App.5th 640, 657— “inadvertently” late filed declarations properly excluded where party did not seek order permitting late filing nor continuance of hearing.)

Here, Plaintiff’s Counsel tells us that he mis-calendared the date for the filing of the opposition. (Buus Decl., ¶2.) A substantive reply was filed with no request for a continuance.

Thus, the Court, in its discretion, considers the opposition.

Requests for Judicial Notice Defendants’ request for judicial notice is granted. The court may take notice of official acts of any state, county or federal legislative, executive or judicial department. (Ev. Code § 452(c); see Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750—court can take judicial notice of records and files of state administrative agencies; Julian Volunteer Fire Co. Ass’n v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600, Judicial notice of an official document includes “facts that can be deduced, and/or clearly derived from, its legal effect...”)

Judicial notice of other court records and files is limited to matters that are indisputably true. This generally means judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed. (See e.g. Fremont Indemnity Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.)

Plaintiffs’ request for judicial notice is denied.

As to the Minute Order, it is not necessary to ask to judicially notice an order in this case. “[Y]ou should simply call the court’s attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2025) ¶ 9.53.1a.)

As to the Declarations, the Court incorporates them by reference instead. A party may file the same declaration in support of several motions by incorporating previously filed declarations by reference, provided the declarations are properly identified by date of execution and title. California Rules of Court, rule 3.1110(d) expressly permits reference to previously filed papers, and courts have consistently held that litigants are not required to refile documents absent a rule precluding incorporation by reference. (See e.g. Roth v. Plikaytis (2017) 15 Cal.App.5th 283.)

Evidentiary Objections Plaintiff’s objection (unnumbered, but the Court numbered them) nos. 1-7 are overruled.

Defendants’ objections nos. 1-16 are overruled.

Legal Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing 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).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v.

Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80- 81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].) Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v.

Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

The court shall grant a motion for summary adjudication “only if it completely disposes” of “a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

Merits

1. Defamation

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. “In general, ... a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.” The defamatory statement must specifically refer to, or be “of [or] concerning, the plaintiff.” If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence that the libelous statement was made with actual malice (i.e., with knowledge that it was false or with reckless disregard of whether it was false or not). (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259.)

Here, Defendants show that California Mortuary Group received an unsolicited email containing the Attorney General’s Accusation against Sunnyside and Charles An on November 5, 2020, and forwarded that public charging document to two industry contacts on the same day. (Separate Statement of Undisputed Fact (SSUF) 9-13.) The allegations in the Accusation are true as evidenced by the Stipulated Settlement and Disciplinary Order wherein Sunnyside and Charles An agreed that the California Department of Consumer Affairs Cemetery and Funeral Bureau could establish a factual basis for the charges in the Accusation. (SSUF 54.)

Moreover, Yung M. Jung and Anne Jung expressly deny making any defamatory statements about Sunnyside or Charles An and deny any interaction during the relevant time with the companies identified in the Amended Complaint. (SSUF 14-17.)

But Plaintiff has met its burden in opposition to show that there are triable issues of material fact as to what was said and to whom.

The FAC alleges that between approximately October 2020 and through the present day, Defendants directly contacted and stated to Sunnyside Associates in the mortuary industry that Plaintiff was being investigated by the State of California Cemetery and Funeral Bureau, that Plaintiff was doing illegal activities, and that if these businesses and individuals who were contacted continued to do business with Plaintiff, they too would be investigated by the State of California, and that their businesses would be jeopardized. (FAC, ¶17.)

Plaintiff provides third-party declarations in opposition that describe other statements that were made by Defendants.

Goldie S. Kim declared under penalty of perjury that John Jung of California Mortuary called her and came to her office in person, and stated the following:

“Sunnyside was conducting illegal preneed trust operations and that Sunnyside was going to be shut down by the State,” “that Sunnyside was deceiving the public and that he would make sure Sunnyside would go out of business,” and “that my business would be harmed by continuing to do any business with Sunnyside.”

(G. Kim Decl.)

Reverend Jung Kim declared under penalty of perjury that John Jung of California Mortuary called him multiple times and came by his office in person, and stated the following:

“that Sunnyside was conducting illegal pre-need trust operations and that Sunnyside was going to be shut down by the State,” “that Sunnyside was deceiving the public and doing criminal activities, and that he would make sure Sunnyside would go out of business,” “that he is friends with the State investigator/auditor,” and “that my business would be harmed by continuing to do any business with Sunnyside.”

(R.J. Kim Decl.)

Defendants argue that these statements are opinion and not statements of fact.

The court decides whether a statement is actionable fact or nonactionable opinion. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.)

The statements that Plaintiff is engaging in criminal and illegal conduct and consequently will be shut down by the State are statements of fact, not unactionable statements of opinion. But is particularly true in light of the context in which the statements to Jung Kim were made: the factual assertions were combined with Yung Jung’s assertion that he is friends with state investigators, which reasonably can be understood to convey that Yung Jung had special “inside” knowledge of the investigation and the State’s planned action.

Further, the Bureau never informed either Sunnyside or An that Sunnyside was unable to do business with its vendors or referral sources, or that anybody doing business with Sunnyside would be negatively impacted. (An Decl., ¶ 3).

While Defendants dispute making these statements, the truth of what was said is properly left to the finder of fact. On Reply, Defendants argue that even accepting the statements of Ms. Kim and Rev. Jung’s characterizations for this motion, they are, at most, disputed accounts of “competitive speech” in the context of a pending Bureau Accusation—a matter of public record—paired with nonactionable opinions, rhetoric, or predictive statements. False assertions of fact are not allowable as competitive statements.

Finally, Defendants argue on reply that Plaintiff has not identified any causal connection or damages stemming for any alleged statements made to Goldie Kim or Reverend Jung Kim.

This argument is made for the first time on reply. Further, there may be a recovery of nominal damages even though no actual injury or punitive damages are shown. (See e.g. Triton Ins. Underwriters, Inc. v. Committee on Chiropractic Welfare (1965) 232 Cal. App. 2d 829.) The Court finds triable issues of fact as to whether Defendants acted with malice in making the alleged statements about its competitor.

Thus, the Motion is denied as to the defamation cause of action.

2. Intentional Interference with Contact

“The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

“[A] cause of action for intentional interference with contract requires an underlying enforceable contract. Where there is no existing, enforceable contract, only a claim for interference with prospective advantage may be pleaded.” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601.)

Here, the FAC lists the following people/entities that Plaintiff alleges it had contracts with that were disrupted by Defendant’s defamatory remarks:

1. The Garden’s Crematory/manager Lauren Marquez 2. Loma Vista Memorial Park and Mortuary, owned by Kurt Adams 3. Immanuel Presbyterian Church/ Mr. Rafael Cardona 4. Bethel Korean Church/ Rev. Soongo Han and Rev. Bryan Kim 5. Melrose Abbey and Mortuary/ Ms. Khari Knight 6. Fullerton Presbyterian Church/ Rev. Young Roh 7. Joen Church/ Rev. Jung Kim 8. Il-Shim Funeral Final Expense Service Ms. Jean Shin.

(FAC, ¶15.)

Defendants have met their burden to show that while Plaintiff identifies multiple business associates, the record confirms the absence of any enforceable contract with several of them, or that the relationship was merely a referral source or per-service arrangement. (See SSUF 21-53).

Plaintiff also cannot show an actual breach or disruption proximately caused by Defendants’ conduct. The Gardens Crematory continued to perform, and Sunnyside still does business with it, negating breach or disruption of any contractual relationship. (SSUF 21, 24). Hilgenfeld Mortuary terminated its relationship for independent reasons— pandemic capacity strain, Sunnyside’s timeliness issues, storage constraints, and misrepresentations about COVID positive cases. (SSUF 38-46). As to Loma Vista, Sunnyside’s own lack of documents supporting any alleged statements, coupled with vague accounts from an anonymous employee, precludes proof of breach or disruption tied to Defendants. (SSUF 25-27).

The pre-2019 cessation with Melrose Abbey predates the alleged interference period and cannot be attributed to Defendants’ later conduct. (SSUF 33-34). Goldie S. Kim had a direct employment relationship with Sunnyside from approximately 2017 to 2018. (SSUF 47.) Jung Kim also worked at Sunnyside during the same period. (SSUF 48.) Both left Sunnyside to run their own business. (SSUF 49.) Goldie did not utilize Sunnyside’s services for personal purposes and never had a personal or contractual business relationship beyond employment with Sunnyside. (SSUF 50.)

In opposition, Plaintiff offers only the conclusory testimony of Charles An’s assertions that “Immediately after Mr. Jung’s defamatory remarks about Sunnyside, and for a period of several years thereafter, Sunnyside experienced pre-need contract cancellations it never experienced before, with several hundred customers cancelling those contracts.” (An Decl., ¶2.) “Substantial” responsive evidence is required. Evidence that gives rise to no more than mere speculation is insufficient to establish a triable issue of material fact. (Howard v.

Accor Mgmt. US, Inc. (2024) 101 CA5th 130—plaintiff’s evidence that property owner had actual or constructive knowledge of unsafe condition was speculative and did not raise triable issue.) The Court also notes the Accusation by the Bureau was served on July 17, 2020 and it required Plaintiffs to each consumer identified in its pre-need portfolio with the account number for where the advanced funds have been deposited. (Moving Ex. R.)

Looking at the evidence presented including Defendants’ discovery responses, Plaintiff has not shown a triable issue of fact as to this cause of action.

Thus, the motion is granted as to the second cause of action for intentional interference with contract.

Defendants are ordered to serve notice of this ruling.