Robert Jantzen vs. Hia Xia Lee

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

Tentative Ruling

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENATIVE RULING:

Plaintiff Robert Jantzen’s (“Plaintiff”) motion for summary adjudication is ruled upon as follows.

Background

This partition action involves the property located at 2118 Seventh Avenue, Sacramento, CA 95818 (“the Property”). Plaintiff alleges that he and Defendant Hai Xia Lee (“Defendant”) are former romantic parties who jointly purchased the Property together as joint tenants in 2004. (Compl. ¶10-11.) Plaintiff further alleges that Defendant quitclaimed the Property to herself as a tenant in common on August 19, 2011. (Compl. ¶12.) The former partners have since parted ways, no longer communicate well with each other, and have been unable to reach an agreement to sell the Property. (Compl. ¶14.) Plaintiff initially brought causes of action against Defendant for partition and quiet title. Plaintiff has since dismissed the cause of action for quiet title.

Plaintiff now moves for summary adjudication as to the single cause of action remaining. Defendant opposes.

Evidentiary Objections

Plaintiff objects to Exhibit A (excerpts from Defendant’s deposition) attached to the declaration of Ernest Chen, as well as various portions of Chen’s declaration. Plaintiff’s objection to Exhibit A is overruled. While Plaintiff starts by asserting objections of relevance, lack of foundation, authentication and hearsay, Plaintiff argues in support of its objections by offering three general arguments as follows: (1) that Defendant’s statements regarding waiver is inadmissible as it requires as writing; (2) that Defendant’s references to an email is inadmissible without producing the email; and (3) that the entire deposition excerpts are inadmissible for failure to properly authenticate.

The Court rejects the first two bases as grounds for sustaining Exhibit A in its entirety. The deposition excerpts speak to more than just waiver and the email purportedly supporting waiver and Plaintiff failed to identify which specific portions of the deposition is objectionable. The Court also rejects Plaintiff contention that the words “true and correct copies” are required to authenticate a document. While a statement that a document is a “true and correct copy” may be sufficient to authenticate it, the Evidence Code does not require such specific language. (See Ambriz v.

Kelegian (2007) 146 Cal.App.4th 1519, 1527, fn.3 [“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) Ambriz's attorney included a copy of the first page of the deposition transcript. There was no reason for the court to be concerned that

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

the transcript was not what Ambriz's attorney claimed it to be, i.e., a portion of the transcript of Pitcher's deposition”].) Chen avers that the exhibit “is a consolidated set of transcript excerpts” from Defendant’s deposition, at which he was present. (Declaration of Ernest Chen (“Chen Decl.”) ¶10.) Plaintiff’s objections are overruled.

Plaintiff further objects to portions of Chen’s declaration related to Plaintiff’s request for continuance under Code of Civil Procedure section 437c, subdivision (h). The Court does not rule on these objections as they are not material to the disposition of the motion. (Code Civ. Proc. §437c, subd. (q).)

Legal Standard

In evaluating a motion for summary judgment or adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat [defendant’s] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican v.

Regents of University of California, (2007) 151 Cal. App. 4th 168, 176-177.)

Next, the Court must determine whether the moving party has met its burden. A plaintiff moving for summary judgment meets its burden of showing that there is no defense to its cause of action by proving each element of its cause of action. (Code Civ. Proc. § 437c, subd. (p)(1).) It is no longer required also to disprove any defense asserted by the defendant. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:235, p. 10-89 (rev. # 1, 2006) [when plaintiff moves for summary judgment “[u]nlike former law, it is not plaintiff’s initial burden to disprove affirmative defenses and cross-complaints asserted by defendant”].)

If the plaintiff does so, the burden shifts to the defendant to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the defendant cannot rely on the mere allegations or denial of its pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc. § 437c, subd. (p)(1).) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [fn. omitted.]” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 850.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is that California Rule of Court, Rule 3.1350, subdivision (b) mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure §437c, subdivision (f)(1) provides in its entirety:

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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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.

Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Discussion

Plaintiff’s notice of motion moves for “summary adjudication on an interlocutory judgment as to the First Cause of Action for Partition in the complaint” against Defendant on the basis that “there are no triable issues of material fact and that Plaintiff has a right to judgment as a matter of law.” (Notice at 1:24-27.) It then lists two “issues” for adjudication within the first cause of action as follows:

Issue 1: The undisputed material facts establish that the Plaintiff has the right to partition the real property located at 2118 Seventh Avenue, Sacramento, California, 95818 (the “Property”). Issue 2: The undisputed material facts establish that the only owners of the Property are the Plaintiff as an owner of a fifty-percent (50%) undivided interest as a tenant-in- common, and the Defendant as an owner of a fifty-percent (50%) undivided interest as a tenant-in-common.

(Notice at 2:7-11.) Plaintiff’s separate statement lists the following two issues for adjudication:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

Issue One: the Plaintiff has a right to partition the property as a matter of law.

Issue Two: the Plaintiff is a 50% owner of the property as a matter of law.

(See Plaintiff’s Separate Statement (“PSS”).)

As noted earlier, “[i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, 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.” (CRC, Rule 3.1350, subd. (b) [emphasis added].) “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc. §437c, subd. (b)(1).)

Plaintiff has failed to comply with California Rule of Court, rule 3.1350, subdivision (b), requiring the verbatim repetition of the issues from the notice of motion. As noted in Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, this is an issue of due process. (Id. at 743-744 [citing Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546].) Indeed, failure to comply with California Rule of Court, rule 3.1350, subdivision (b) is sufficient grounds to deny a motion for summary adjudication. (Schmidlin, supra, 157 Cal.App.4th at 744.)

Plaintiff’s motion for summary adjudication is DENIED on this basis alone. The Court also notes that while failure to present the issues verbatim in the separate statement is alone sufficient to deny the motion, the discrepancies that exist in Plaintiff’s notice of motion versus separate statement are factual and material in nature. These significant distinctions only serve to highlight why California Rules of Court, rule 3.1350, subdivision (b) exists and why failure to comply is a basis for denial of the motion.

While the Court need not proceed further, it finds additional bases for denial of Plaintiff’s motion for summary adjudication.

As noted earlier, summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. (Code Civ. Proc. §437c, subd. (f)(1).) Plaintiff’s second “issue” for summary adjudication, that Plaintiff is a 50% owner of the Property, fails to dispose of the cause of action for partition, affirmative defense, claim for damages, or question of duty. Plaintiff’s second issue is therefore not a basis, on its own, for summary adjudication and is DENIED on that additional basis.

The Court construes Plaintiff’s first issue (and entire motion, albeit deficiently presented) as one for summary adjudication of Plaintiffs’ first and only remaining cause of action for partition by sale and a request for interlocutory judgment upon adjudication of that cause of action.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

A co-owner of real or personal property may bring an action for partition. (Code Civ. Proc. §872.210.) A party seeking to partition real property “need not assign any reason for his demand.” (Williams v. Williams (1967) 255 Cal.App.2d 648, 651.) Code of Civil Procedure section 872.720 provides that “[i]f the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests in the property and orders the partition of the property, and unless it is to be determined later, the manner of partition.” (Code Civ.

Proc. §872.720, subd. (a).) In lieu of dividing the property, 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 if the Court determines sale and division of the proceeds would be more equitable than a division of the property. (Code Civ. Proc. §872.820.) An interlocutory judgment for partition is appropriately granted pursuant to a motion for summary judgment. (LEG Investments v.

Boxler (2010) 183 Cal.App.4th 484, 497-498.)

“A co-owner has an absolute right to partition unless barred by a valid waiver.” (LEG Investments, supra, 183 Cal.App.4th at 493.) “[T]he right of partition may be waived by contract, either express or implied.” (Id. [quoting American Medical International, Inc. v. Feller (1976) 59 Cal.App.3d 1008, 1014].) An “agreement to postpone partition may be implied where the purpose for which the property was acquired by the parties would be defeated by partition.” (Pine v. Tiedt (1965) 232 Cal.App.2d 733, 736-737.) “In addition, to the limitation on the right of partition derived from express and implied waiver by agreement, there is an even wider and more general limitation.

This limitation subjects the right of partition to the ‘requirement of fairness.’” (American Medical International, Inc., supra, 59 Cal.App.3d at 1015.) The right to partition is also subject to estoppel and other equitable defenses. (Thomas v. Witte (1962) 214 Cal.App.2d 322, 326.)

Plaintiff provides the following purportedly undisputed material facts (“UMFs”) in support of his cause of action for partition. Since 2004, Plaintiff has been the co-owner of the Property. (UMF 1.) In August 2021, Defendant quitclaimed the Property to herself as a tenant-in-common. (UMF 2.) The only owners of the Property are the Plaintiff and Defendant as tenants-in-common in the Property. (UMF 3.)

The Court finds that UMF 2 is unsupported by any admissible evidence. UMF 2 states that Defendant quitclaimed the Property to herself as a tenant-in-common. The separate statement cites to paragraph 7 of Plaintiff’s declaration and Exhibit 3 attached thereto, as well as Exhibit 1 to the declaration of Sandy Sikavi. Paragraph 7 of Plaintiff’s declaration simply avers that Defendant quitclaimed the Property to herself as a tenant-in-common on August 19, 2011. It also states that a true and correct copy of this quitclaim deed is attached as Exhibit 3.

However, Plaintiff provides no factual basis for his knowledge related to the aforementioned quitclaim deed. Unlike the 2004 Grant Deed attached to his declaration, Plaintiff is clearly not a signatory to the quitclaim deed. He does not otherwise establish any foundation for his knowledge of the facts surrounding the quit claim deed. Notably, to the extent the deed could possibly be subject to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

judicial notice, Plaintiff failed to request judicial notice of it. (See CRC, Rule 3.1113, subd. (l) [“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested”].) Nor does the Court take judicial notice of the quitclaim deed sua sponte, especially where attempting to do so would deprive any opposing party of the opportunity to challenge such judicial notice. On summary judgment or adjudication, the moving party bears the initial burden of proof.

The separate statement also cites to Plaintiff’s verified complaint, attached to Sikavi’s declaration as Exhibit 1. First, California Rules of Court, rule 3.1350, subdivision (d)(3) requires that each UMF must be “followed by the evidence that establishes it,” including “reference to the exhibit, title, page, and line numbers.” (Emphasis added.) Plaintiff’s reference to his 48-page complaint as evidence of UMF 2 clearly fails to comply with the Rule 3.1350. As noted above, this is a matter of due process. “The due process aspect of the separate statement requirement is self-evident -- to inform the opposing party of the evidence to be disputed to defeat the motion.” (United Community Church v.

Garcin (1991) 231 Cal. App. 3d 327, 337.) Rather than cite to the location of the evidence which purportedly supports UMF 2, Plaintiff merely cites to the entire complaint, the vast majority of which is unrelated to the UMF at issue. The Court need not and will not scour through the complaint to identify what portion thereof purports to support UMF 2. It was Plaintiff’s burden to clearly cite to evidence. More importantly, Plaintiff’s failure to identify the specific location which supports its UMF deprives Defendant of her due process rights.

Plaintiff must properly identify the evidence it seeks to use in seeking summary judgment so that Defendant may respond. Failure to do so deprives Defendant of due process because Defendant cannot raise issues of material fact, object to the evidence, or even present argument against the evidence unless Defendant can readily identify the evidence used in support of the asserted UMF. Without identifying the specific evidence Plaintiff uses to support UMF 2, Plaintiff has deprived Defendant of the ability to adequately respond.

Second, to the extent Plaintiff refers to the same quitclaim deed as in Plaintiff’s declaration, Plaintiff again failed to request judicial notice of the deed. The complaint, even if verified, fails to provide a foundation for Plaintiff’s personal knowledge regarding the alleged quitclaim deed. Plaintiff has not satisfied its initial burden on its motion as it relates to UMF 2.

UMF 3 is also unsupported by any admissible evidence. Plaintiff cites to his own declaration, as well as Exhibits 2 and 3 attached thereto, and Exhibit 1 attached to Sikavi’s declaration. For the same reasons as identified above, there is no admissible evidence that Defendant quitclaimed her share of the joint tenancy to create a tenancy-in-common with Plaintiff. As such, UMF 3’s assertion that Plaintiff and Defendant share ownership of the Property as tenants-in-common is unsupported. This failure to adequately support UMF 3 is a separate and independent basis for denial of Plaintiff’s motion.

Again, given Plaintiff’s failure to satisfy its initial burden with respect to multiple asserted UMFs, the Court need not proceed further. Nonetheless, the Court notes that even if Plaintiff had satisfied its initial burden, Defendant has raised disputed issues of material fact as to each of the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

three UMFs Plaintiff provides in support of his motion. A triable issue as to any one UMF constitutes a basis for denial of the motion in its entirety. Defendant “admits, but with reservations” UMF 1, which asserts that Plaintiff has been the co-owner of the Property since 2004. In actuality, it appears that Defendant disputes the UMF as she claims Plaintiff holds title in name only, and gave up or waived any interest in the Property when he abandoned it in exchange for taking another real property also jointly owned by the Parties. (See Declaration of Ernest Chen (“Chen Decl.”), Exh.

A at 47:1-21, 100:21-101:1; Exh. B at ¶4.) As noted earlier, the Court overruled Plaintiff’s objection to Exhibit A in its entirety and Plaintiff failed to object to any specific portions of Defendant’s deposition transcript. Plaintiff’s arguments in its memorandum of points and authorities relying on the objections are improper. (See CRC, Rule 3,1354, subd. (b) [written objections must be separately filed].) Thus, Defendant’s effective dispute of UMF 1 serves a yet another independent basis for denial of the motion.

Defendant also disputes UMF 2. Defendant testified that she did not remember trying to change the title of the Property from joint tenants to tenants-in-common. (Chen Decl., Exh. A at 46:22- 47:1.) This provides another separate and independent dispute. The Court notes that Defendant’s counsel, in both the separate statement and the memorandum of points and authorities, indicates that Defendant, on advice of prior counsel, intentionally sought to misrepresent the nature of her ownership of the Property by recording a defective deed. The Court does not address this admission as it is unsupported by any admissible evidence and is otherwise immaterial to the present motion.

UMF 3 is also disputed as Defendant denies that she tried to change the title of the Property from joint tenants to tenants-in-common. (Chen Decl., Exh. A at 46:22-47:21.) This certainly creates yet another independent basis for denial of Plaintiff’s motion.

The Court notes that on summary judgment or adjudication, the Court does not weigh the evidence as if it were the ultimate trier of fact. (See Reid v. Google, Inc. (2010) 50 Cal.45h 512, 540.) Rather, once an opposing party has raised a dispute as to a concededly material fact, any request for summary judgment or adjudication premised on that UMF must be denied.

Here, even separate from Plaintiff’s failure to satisfy its initial burden, Defendant has raised disputes of material fact as to each one of Plaintiff’s three UMFs in support of his cause of action for partition. Plaintiff’s motion is DENIED, on this additional basis.

The Court notes that Defendant moved the Court to deny or continue the instant motion under Code of Civil Procedure section 437c, subdivision (h) but only did so “as an alternative in the event that the court elects NOT to overrule [sic] Plaintiff’s MOTION on other grounds.” (Chen Decl. ¶8.) As the Court has denied Plaintiff’s motion for summary adjudication, the Court does not consider Defendant’s alternative request for denial or continuance pursuant to Section 437c, subdivision (h).

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00327207-CU-OR-GDS: Robert Jantzen vs. Hia Xia Lee 11/21/2024 Hearing on Motion for Summary Adjudication in Department 53

Disposition

Plaintiff’s motion for summary adjudication is DENIED, in its entirety.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)