Tung vs. Forniss

TENTATIVE RULINGS August 24, 2026

# Case Name Tentative

101 2023-01333212 Motion – Other

Sampson vs. Plaintiff Michelle Sampson’s motion for fees and costs is denied. Rocha These motions all suffer from the same procedural defects as the other motions Plaintiff has brought. (See e.g., 9/16/24 Minute Order, 8/19/24 Minute Order, 2/3/25 Minute Order, 3/10/25 Minute Order.)

First, no proof of service was filed with the motion. (See Code Civ. Proc. § 1014, California Rules of Court, rule 3.1300(c).)

Second, Plaintiff’s motion did not include a memorandum of points and authorities. California Rules of Court rule 3.1113(a) states, “A party filing a motion . . . must serve and file a supporting memorandum.” That rule further states, “The court may construe the absence of a memorandum as an admission that the motion . . . is not meritorious and cause for its denial.” (Cal. Rule Ct., rule 3.1113(a).)

Finally, no legal authority is provided to support Plaintiff’s request. “Every brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (People v. Stanley (1995) 10 Cal.4th 764, 793).

For the foregoing reasons, the motion is denied.

The clerk is ordered to provide notice to all parties.

103 2025-01487584 Motion to Strike Portions of Complaint

Tung vs. Forniss Defendants Alan Forniss and Exp. Realty of California, Inc.’s motion to strike portions of Plaintiff Derek Tung’s First Amended Complaint is denied.

Defendants will be provided the opportunity to respond to Plaintiff’s late opposition at the hearing should they wish, if they are unable to file a reply brief given the time constraints.

While the Court has exercised its discretion to consider Plaintiff’s late opposition this time, Plaintiff is cautioned that in the future, any briefs must be timely filed or the Court may refuse to consider an untimely brief. (Cal. Rules of Court, rule 3.1300(d).

Defendants move to strike Plaintiff’s request for “reasonable attorneys’ fees, where recoverable by law.”

Defendants are correct in arguing that because Plaintiff is pro per, he is not entitled to attorney fees. (See Trope v. Katz (1995) 11 Cal.4th 274, 292 (“an attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover reasonable attorney's

fees.”).)

However, the Court finds Defendants’ motion unnecessary given that Plaintiff’s request in the First Amended Complaint is expressly conditioned on whether the law allows for the recovery of attorney fees. At this time, given Plaintiff’s self-represented status, he would not be able to recover attorney fees. Plaintiff’s prayer for relief as currently pled does not change the analysis.

Plaintiff is ordered to give notice.

107 2023-01351239 1. Motion for Summary Judgment and/or Adjudication 2. Motion for Summary Judgment and/or Adjudication Harris vs. Shops at Mission Viejo, LLC (1) MOTION FOR SUMMARY JUDGMENT

Defendant Welltower Mission Viejo Medical Center JV, LLC’s (“Welltower”) motion for summary judgment as to Plaintiff Gina Harris’ First Amended Complaint (“FAC”) is denied.

“[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].)

Defendant Welltower moves for summary judgment as to Plaintiff’s First Amended Complaint asserting negligence, premises liability and products liability(negligence) claims against Welltower.

The elements of negligence are: “(1) a legal duty to use due care; (2) a breach of such legal duty; [and] (3) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The elements of premises liability are: (1) Defendant owned/leased/occupied/controlled the property, (2) Defendant was negligent in the use or maintenance of the property, (3) Cross-Complainant was harmed, and (4) Defendant’s negligence was a substantial factor in causing Cross-Complainant’s harm. (CACI 1000; Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139. (“The same concepts of duty applicable to general negligence claims apply to premises liability claims.”).) “The existence and scope of duty are legal questions for the court.” (Annocki v.

Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36 [citing Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477].) “Liability founded upon a claim of negligence cannot exist unless a duty of care is owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member. [Citations.]” (Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1145 [citing Gomez v. Ticor (1983) 145 Cal.App.3d 622, 627.)

Defendant’s moving papers are based on the lease agreement between it and Mission