Nasr vs. Ride Aventon, Inc.

First, part of that delay is attributable to Defendant’s refusal to stipulate to allowing Plaintiffs to amend. Plaintiffs contend that on April 13, 2026, they “requested that Defendants stipulate to the filing of a proposed first amended complaint to add the above-referenced causes of action and punitive damages.” (Darling Decl. ¶ 22.) However, Defendants declined the request. (Id.)

Further, “[w]here no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.)

Within the opposition brief, Defendant argues, essentially, that amendment will require it to expend additional time, effort and resources, responding to the new claims. (See, e.g., Oppn at 2:23-27); however, it is “unreasonable to deny a party the right to amend where the only apparent hardship to the defendants is that they will have to defend.” (Landis v. Superior Court (1965) 232 Cal.App.2d 548, 557; see also Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 168, citing the same.)

“Absent some kind of disadvantage to [Defendant’s] defense linked to the passage of time – such as faded memories or lost evidence – delay in and of itself was not a valid reason to deny amendment.” (Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 168.) Similarly, the Court in Landis noted that it was “unable to find any case in which denial was upheld where the sole basis on which the court relied was lack of diligence at a stage in the proceeding where pretrial or trial had not been set.” (Landis v. Superior Court (1965) 232 Cal.App.2d 548, 557.)

As Defendant has not submitted any evidence that it will be prejudiced in such a manner as to justify denying the motion, the motion for leave to amend is granted.

Plaintiffs’ requests for judicial notice are granted pursuant to Evidence Code §452(d).

Plaintiffs shall separately file and serve the proposed First Amended Complaint within 10 days.

Plaintiffs to give notice.

13. 30-2017-00960046 1. Motion for New Trial

Wosoughkia vs. ***No Tentative Ruling.*** M3Live Bar & Grill, Inc

15. 30-2024-01422667 1. Motion for Summary Judgment and/or Adjudication

Nasr vs. Ride Aventon, Defendant Ride Aventon, Inc. seeks a motion for summary judgment as to Plaintiff’s Complaint (7 Inc. causes of action pled therein), or alternatively, summary adjudication as to 16 issues.

Based on applicable law, and a set forth herein, said Motion is DENIED.

Notably, pursuant to CCP§437c(f)(1), “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative

defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Here, for many of the issues to be adjudicated, Defendant seeks adjudication of “elements,” rather than the cause of action itself.

Therefore, the Court will address each cause of action, and the claim for emotional distress damages, and punitive damages.

Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (Quantum) (2011) 197 Cal.App.4th 927, 934, explains, “Rule 3.1113 rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide. On the record in this case, the trial court was justified in declining to look beyond that failure.”

A defendant moving for summary judgment must “show” that either: • one or more elements of the “cause of action ... cannot be established”; OR • there is a complete defense to that cause of action. [CCP § 437c(p)(2) (emphasis added)]

First Cause of Action for Promissory Fraud

In the Plaintiff’s 1st Cause of Action for Promissory Fraud, she pleads:

62. On or about June 14, 2022, Mr. Zhang promised Ms. Nasr a compensation package to induce her to reject the employment offer she received and accepted from eSalon, which included the following terms:

a. An increase in base salary to $330,000/year.

b. Grant Ms. Nasr equity that would allow her to own 1% of Aventon, proposing generally a structure of 0.25% vesting per year retroactive to her start date of March 2, 2020 (so 0.50% of Aventon would have been vested at the time Mr. Zhang made the offer, with another 0.25% vesting on March 2, 2023 and the final 0.25% vesting on March 2, 2024). Mr. Zhang represented at that time that the paperwork to grant the equity would need to be completed by its lawyers, but that Aventon would complete documents and convey Ms. Nasr’s equity within eight to ten weeks.

c. Change Ms. Nasr’s annual bonus from being based on individual bike sales to based on overall company performance. Specifically, Ms. Nasr would receive a 2022 bonus of $200,000 based on a target of $200 million in annual sales (e.g. if Aventon reached $200 million in sales in 2022 as projected, Ms. Nasr would receive a $200,000 bonus).

d. Guarantee Ms. Nasr one year of severance in the event Aventon terminated her employment within one year.

[Emphasis added, Complaint¶62.]

Defendant first argues that the 1st cause of action is barred by the economic loss rule. Defendant contends the fraud claim is barred by the economic loss rule because it "overlaps" with the contract claims.

The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise... Quite simply, the economic loss rule “prevent[s] the law of contract and the law of tort from dissolving one into the other.” (Rich Products Corp. v. Kemutec, Inc. (E.D.Wis.1999) 66 F.Supp.2d 937, 969.) However, even in the Robinson case, there are stated exceptions—“See also Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 78, [‘when one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort’].) Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.

Furthermore, Plaintiff cites to the Supreme Court decision in Lazar v. Superior (1996) 12 Cal.4th 631, 638–639 which stated:

An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. (Chelini v. Nieri (1948) 32 Cal.2d 480, 487 [“tort of deceit” adequately pled where plaintiff alleges “defendant intended to and did induce plaintiff to employ him by making promises ... he did not intend to (since he knew he could not) perform” (fn. omitted)]; Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 549; citing Horn v. Guaranty Chevrolet Motors (1969) 270 Cal.App.2d 477, 484; Squires Dept.

Store, Inc. v. Dudum (1953) 115 Cal.App.2d 320, 323.) In such cases, the plaintiff's claim does not depend upon whether the defendant's promise is ultimately enforceable as a contract. “If it is enforceable, the [plaintiff] ... has a cause of action in tort as an alternative at least, and perhaps in some instances in addition to his cause of action on the contract.” (Rest.2d Torts, § 530, subd. (1), com. c., p. 65, cited with approval in Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29.) Recovery, however, may be limited by the rule against double recovery of tort and contract compensatory damages. (Tavaglione v.

Billings (1993) 4 Cal.4th 1150, 1159.)

[Lazar v. Superior Court (1996) 12 Cal.4th 631, 638–639. Internal citations omitted.]

Given the exceptions and rules stated above, the economic loss rule does not appear to bar the claim. This is an employment case based on promises made to retain an employee, not a case where a purchaser bought a product. Given that, Lazar is more on point than Robinson.

Defendant next argues, the cause of action is without merit because Plaintiff has no evidence of a false promise, fraudulent intent, or justifiable reliance.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 6765 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778; see also Civ. Code, § 1709; Hunter, supra, 6 Cal.4th 1174, 1184; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1108.)

(3) “Promissory fraud” is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable

fraud. (Union Flower Market, Ltd. v. Southern California Flower Market, Inc. (1938) 10 Cal.2d 671, 676 [76 P.2d 503]; see Civ. Code, § 1710, subd. (4); 5 Witkin, Summary of Cal. Law, supra, § 685, pp. 786-787.)

[Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.]

First, Defendant argues, “Plaintiff has no evidence whatsoever that Aventon promised a 1% equity stake vested 0.25% over a four-year period, guaranteed bonus, or severance, or that the company lacked the intention to perform at the time of the alleged June 14, 2022 conversation.” (Motion page 6:12-14.)

Thus, Defendant is attempting to “show” that an essential element of plaintiff's claim cannot be established. But in order to do so, Defendant must present evidence that plaintiff “does not possess and cannot reasonably obtain, needed evidence.” [Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 854 (emphasis added).]

Here, Defendant does not make that showing. Rather, it argues that “Plaintiff conceded that during her alleged call with JW there was no discussion about the amount of equity she would receive, on what schedule, by what terms, etc. (Nasr Depo. Tr. at 142:11–164:5.)” (Motion page 6:14-16.)

However, that same deposition testimony also indicates that JW promised Plaintiff equity. And while Plaintiff did concede that a specific number of equity did not come up in that initial conversation, she did testify that JW’s proxy, Ed, came up with 1% number.

Therefore, there are triable issues of material fact as to whether a promise was made relating to “equity”. Also, the equity aspect is only one of four promises. Defendant appears to be impermissibly splitting the cause of action by focusing solely on the equity promise and not the other promises.

Defendant next argues (without citing to any evidence) that the fact that Aventon actually did perform two of the four alleged terms by executing the 2022 Offer Letter with a higher salary and a bonus structure, undercuts any inference of fraudulent intent at the time of the promise. Arguably, however, this could also mean that JW always intended to pay Plaintiff a higher salary, but never intended to keep the promise as to the other, known, terms to retain Plaintiff.

Therefore, Defendant has not sustained its burden to show Plaintiff has no evidence of lack of promise.

Even assuming Defendant did sustain its burden, Plaintiff argues (without citation to any UMF or evidence) that “(1) Mr. Zhang made specific promises to induce Plaintiff to stay – memorialized the following day in her email to Mr. Nevraumont; (2) admittedly Mr. Zhang alone controlled the ability to convey equity in Aventon; (3) there is comprehensive evidence that a completed equity plan sat "waiting for [him] to review" while he told Plaintiff he was "still working on it"; (4) he granted equity to other employees during the same period but never to Plaintiff; and (5) he terminated her after he had obtained what he needed from her to close the Sequoia deal over her insistence for months that he convey the equity.” (Opp pg.12:12-19.) Therefore, Plaintiff argues that a reasonable jury could find a false promise made without intent to perform.

Defendant also argues that reliance is not justifiable where it is inconsistent with the clear and unambiguous terms of a contract, and that here, she knew that the 2020 Offer Letter required any modification to be made “by an express written agreement signed by both you and a duly

authorized officer of the Company”—which the terms relating to equity and severance were not. In support of this argument, Defendant cites to Applied Elastomerics, Inc. v. Z-Man Fishing Prods., No. C06-2469 CW, 2006 WL 3251732, at *6 (N.D. Cal. Nov. 8, 2006). Given this is a 2006 case a more appropriate citation should have been provided. This one could not be located.

Ultimately, whether Plaintiff was justified in her reliance of JW’s promises should be determined by a jury.

Finally, Defendant argues that this conclusion (relating to justifiable reliance) is compelled by the broader rule that evidence of promissory fraud “cannot be offered to show a promise which contradicts an integrated agreement.” Alling v. Universal Mfg. Corp., 5 Cal. App. 4th 1412, 1436 (1992) (citation omitted). Defendant asserts that the 2022 letter is simply a written modification of the 2020 letter.

In Alling, the Court indicated

“Promissory fraud” is a promise made without any intention of performing it. (Civ. Code, § 1572, subd. 4; Coast Bank v. Holmes (1971) 19 Cal.App.3d 581, 591 [97 Cal.Rptr. 30].) The fraud exception to the parol evidence rule does not apply to such promissory fraud if the evidence in question is offered to show a promise which contradicts an integrated written agreement. Unless the false promise is either independent of or consistent with the written instrument, evidence thereof is inadmissible.

The law in California was stated by our Supreme Court as follows: “Our conception of the rule which permits parol evidence of fraud to establish the invalidity of the instrument is that it must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing.”

[Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1436-7.]

Defendant argues that Plaintiff’s entire fraud theory rests on alleged oral promises that directly contradict these integrated agreements.

However, only the 2020 letter is integrated. The nature of the 2022 letter is very unclear as it suggests it is a “highlight” of the offer (meaning there are other terms), and “is not a contract”.

To the extent Defendant is arguing that the parol evidence rule bars evidence of the oral promises, there are many exceptions to that rule. See CCP§1856.

Again, the only integrated agreement was the 2020 agreement. As such oral promises made by JW in 2022 are not evidence of a prior agreement (prior to 2020), nor are they contemporaneous. As such, they are not parol evidence.

As such, parol evidence would not bar Plaintiff’s 1st cause of action.

2nd c/a for Promissory Estoppel

Here, neither party lists the elements of promissory estoppel.

The elements of a cause of action for promissory estoppel are (1) a promise, (2) the reasonable expectation by the promisor that the promise will induce reliance or forbearance, (3) actual reliance or forbearance, and (4) the avoidance of injustice by enforcing the promise. (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310.) A cause of action for promissory estoppel is a claim in equity that substitutes reliance on a promise for consideration “in the usual sense of something bargained for and given in exchange.” (Youngman v.

Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 249.) If actual consideration was given by the promisee, promissory estoppel does not apply. (Id. at p. 250; see Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 672–673; Avidity Partners, LLC v. State of California (2013) 221 Cal.App.4th 1180, 1209; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 275.)

Although a cause of action for promissory estoppel is inconsistent with a cause of action for breach of contract based on the same facts (see, e.g. Money Store Investment Corp. v. Southern Cal. Bank (2002) 98 Cal.App.4th 722, 732), “[w]hen a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.”

[Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1412–1413.]

Here, Defendant argues that plaintiff may not recover on a quasi-contract claim if the parties have an enforceable agreement regarding the same subject matter. Klein v. Chevron U.S.A., 202 Cal. App. 4th 1342, 1388 (2012).

However, here, neither the 2020 letter nor the 2022 letter discussed the amount of severance or equity. As such, there are no agreements relating to the same subject matter.

3rd c/a for Breach of Oral Agreement

Defendant first argues there was no meeting of the minds on all material points of the alleged oral agreement.

Whether an oral agreement constitutes a final agreement or merely an agreement to make an agreement depends primarily upon the intention of the parties. In the absence of ambiguity, this intention must be determined by a construction of the agreement as a whole, and objective intent as evidenced by the words of an oral agreement, not the parties' subjective intent, governs the court's interpretation of the agreement. If an oral agreement shows no more than an intent to further reduce the agreement to a more formal written agreement, the failure to follow the oral agreement with a more formal writing does not negate the existence of the prior oral contract.

However, where an oral agreement shows that it was not intended to be binding until a formal written contract is executed, there is no contract, just as there is no contract until there has been a meeting of the minds on all material points. [See Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1423.]

To that end, Defendant argues that Plaintiff repeatedly acknowledged during her deposition that no agreement was ever reached regarding her alleged revised compensation package, especially as to the term for equity.

In opposition, Plaintiff argues, “However, “ ‘[t]he law does not favor but leans against the destruction of contracts because of uncertainty; and it will, if feasible, so construe agreements as to

carry into effect the reasonable intentions of the parties if [they] can be ascertained.’ ” [Patel v. Liebermensch (2008) 45 Cal.4th 344, 349.]

Notably, the Patel case was one of specific performance. Here, Plaintiff has pled a cause of action for Breach of Contract.

In coming through all of the evidence presented by the parties herein, it appears clear that JW made promises to Plaintiff to entice her to stay at Defendant Company. It also appears clear that as to the promises of equity and severance, while those items may have been promised by JW, the exact amount was still being negotiated. There does not appear to be a meeting of the mind as to those terms.

There does appear to have been a meeting of the minds as to compensation ($330K) and bonus (discretionary), as Plaintiff signed the 2022 letter, which set forth both.

Yet, whether the 2022 letter constitutes a new, written contract, or simply a “change order” in support of an oral agreement is unclear and should be determined by the jury. Indeed, the 2022 letter itself indicates it is just highlighting some of the terms and it is not a contract.

Because there was clearly a meeting of the minds as to some terms, but possibly not others, the Court denies the motion as to this cause of action so as to not split the cause of action.

Defendant also argues that the “equity” promise is denied by the Statute of Frauds; however, again, this argument is only directed to a portion of the alleged oral agreement and does not infect the entire agreement. When a promise that is not within the statute of frauds is coupled with one that is, the entire contract is unenforceable unless the promises are held “divisible.” [Pollyanna Homes, Inc. v. Berney (1961) 56 Cal.2d 676. Arguably, the term relating to equity could be divisible from the terms relating to $330K in compensation.

Finally, Defendant argues that Plaintiff’s continued employment for months after executing the 2022 Offer Letter constituted her acceptance of those terms as the complete statement of her compensation as a matter of law. However, Plaintiff argues, and the evidence establishes that Plaintiff was never told that equity and severance were withdrawn; she was told the opposite—that they remained pending and "JW was still working on that." (Nasr Depo. 180:7–18) Arguably, continuing to work in reliance on an assurance that a promised benefit is still coming is not acceptance of its removal.

Fourth Cause of Action for Breach of Written Agreement

In the 4th cause of action for Breach of Written Agreement, the Complaint directs the reader to Ex. A which is the 2020 letter.

Here, Defendant once again argues that Plaintiff has no evidence to substantiate her claim that she is owed bonus money. In Defendant’s separate statement, it sets for the material fact as:

4. Plaintiff has no documentation to substantiate her claim that she was owed at least $120,000 as a bonus for the year 2021.

As to evidence, Defendant indicates “N/A”. However, as established above, Defendant must present evidence that plaintiff “does not possess and cannot reasonably obtain, needed evidence.” [Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 854 (emphasis added).] That is, Defendant

must present evidence that Plaintiff has no evidence. Defendant failed to do so, and thus, did not sustain its burden.

Furthermore, Plaintiff disputes this fact as follows:

Disputed. With 2021 direct-to-consumer sales exceeding $60 million, the formula in the February 2020 contract yielded well over $120,000; Aventon paid only approximately $38,000. (Nasr Depo 103:18-25) She testified as to her familiarity with the CRM system which contained those numbers supporting her position. Plaintiff maintained a marketing pro forma tracking the sales data needed to run the formula (Nasr Depo. 100:1–5). Applied to 2021's $60-million-plus in direct-to-consumer sales, the formula yields well over $120,000 against the roughly $38,000 paid.

Tellingly, Zhang did not defend the payment under the contract formula at all; he invoked a company target and a "verbal" marketing-expense cap he admitted was never "firmly in writing." (Zhang Depo. 75:9– 76:5.) Mr. Zhang only offered excuses about how the company had cash flow problems as his reasons for why he would not pay the amount owed. (Nasr Depo. at 104:14-105:16) At his deposition Zhang did not defend the $38,000 payment under the offer-letter formula; instead he justified it by reference to a company sales target and a "10 percent" marketing-expense cap that, he admitted, was only "verbal" and never "firmly in writing." (Zhang Depo. 75:9–76:5 (“I didn't put anything, like, firmly in writing”, Zhang Depo at 75:24).

He continued that he “couldn’t complain” about the return on investment from the company’s marketing expenditures. (Zhang Depo. 76:6- 22).

Therefore, to the extent Defendant did sustain its initial, substantive burden, and the burden thus shifted to Plaintiff to create a triable issue of material fact, she has done so.

5th cause of action for Violation of California Business and Professions Code Section 17200

Defendant argues that the UCL is derivative of Plaintiff’s 4th c/a. Based on Defendant’s argument, the claim survives. Defendant also argues there is no showing of willfulness. Defendant improperly cites to Pedroza v. PetSmart, Inc., No. ED CV 11-298, 2012 U.S. Dist. LEXIS 189530, at *13-14 (C.D. Cal. 2012)—which the Court cannot locate.

6th c/a Waiting Time Penalties and 7th c/a Wrongful Termination in Violation of Public Policy

Defendant argues these causes of action fall or rise based on the outcome of the other causes of action.

Emotional Distress Damages & Punitive Damages

In connection with the 7th c/a for Wrongful Termination plaintiff pleads emotional distress damages and punitive damages. (Complaint¶¶98, 100, 101.)

Defendant argues that emotional distress damages is barred under the exclusive remedy provisions of workers’ compensation because “the basic conditions of compensation are otherwise satisfied, and [Aventon’s] conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship.” Livitsanos v. Sup. Ct., 2 Cal. 4th 744, 754 (1992).

However, a jury could find that retaining an employee based on certain promises, and then terminating that employee to avoid fulfilling the promises (and not paying agreed to wages) could contravene fundamental public policy.

As to punitive damages, the jury should also determine whether Aventon (through JW) engaged in malicious, oppressive, or fraudulent conduct.

Accordingly, in total, the subject Motion is DENIED.

Plaintiff to give notice.

16. 30-2025-01461933 1. Motion for Summary Judgment and/or Adjudication

Rivas vs. Apple, Inc. Defendant Apple moves for summary judgment on the ground that the undisputed evidence establishes that Rivas’s iPhone 13, IMEI 359888174969753, Serial Number FYRRY93PG4 (the “subject iPhone 13”) did not undergo any thermal event and did not cause the incident alleged in the operative First Amended Complaint.

Plaintiff Herber Henry Anguilar Rivas (“Plaintiff”) opposed the motion, arguing that Plaintiff’s expert’s testimony creates triable issues of material fact that must be determined by the trier of fact.

A. MOTION FOR SUMMARY JUDGMENT BURDENS

Code of Civil Procedure section 437c(c) discusses the moving party’s burden on a motion for summary judgment:

“The motion for summary judgment 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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“A defendant or cross-defendant has met that party's burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

In discussing the burden on the opposing party, Code of Civil Procedure section 437c states:

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross- complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific