In July 2012 a complaint was filed by one plaintiff, joined in September by the four others, whose first amended complaint named seven defendants, not including the developer Holdings, which was bankrupt. The essence of the case was fraud and negligence in construction and in soil remediation, the fundamental claim being that Spanish Peaks was a "landslide complex." Interestingly, though four of the five plaintiffs had taken title to the properties via LLCs, the lawsuit was brought in their individual names.
Four of the defendants moved for summary judgment, on several separate, and independent, bases, including lack of standing, no duty, no causation, and various defenses based on the purchase documents. The number of parties, the complexity of the various transactions, the relationships-more accurately, lack of relationships-between the five plaintiffs and the many defendants, and the financial details of the individual plaintiff's situation necessarily led to a lengthy statement of undisputed material facts-338 facts to be precise, in 49 pages.
Plaintiffs' separate statement in response was 155 pages, a statement that did not comply with the Rules of Court, improperly citing to numerous undisputed material facts for specific arguments in the opposition, which undisputed material facts were then supported by multiple paragraphs of multiple declarations, at times by every paragraph of nearly every declaration on file.
Plaintiffs appeal, presenting six questions for decision, most of which address the claimed lack of merit in defendants' motion, issues the trial court did not reach. We conclude the trial court did not abuse its discretion in granting the motion on the basis it did, and we affirm.
The Proceedings Below
The Complaint
The lawsuit started with a complaint on July 19, 2012 filed by one plaintiff, Dennis
The FAC also named six more defendants in addition to the originally named White Corporation: James Dolan, Voyager Group, Spanish Peaks Realty LLC, Rivers to Peaks Realty, American Land Development LLC, and Treadwell & Rollo.
"9. Defendant James Dolan ('Dolan') is an individual residing, on information and belief, in Pittsburgh, Pennsylvania. Dolan is a principal and controlling owner of Defendant Voyager Group ('Voyager'), a Pennsylvania limited partnership. Dolan and Voyager at all times were principals and controlling owners of Defendants Spanish Peaks Realty LLC, Rivers to Peaks Realty, and American Land Development LLC (collectively known herein as 'Dolan Defendants'), at all times acting on behalf of those entities, and other related entities. Dolan Defendants also owned and controlled ... 'Holdings' ....
"10. All the defendants are principals, agents, employees, employers, partners, joint venturers and/or co-conspirators acting jointly and in concert and within the scope of their authority.
The FAC was titled for "Unfair Business Practice; Negligence; Fraud and Deceit; and Breach of Fiduciary Duty." In fact, the FAC alleged three other causes of action, styled "Negligence-Property Damage," "Breach of Warranty," and "Strict Products Liability." The Dolan defendants were named in the first, second, third and fourth causes of action. The sixth and seventh causes of action were against only American Land Development and Treadwell and Rollo.
The FAC was lengthy, 184 paragraphs, describing in great detail plaintiffs' version of what occurred. Distilled to its essence, the FAC alleged that Dolan and the other Dolan defendants all worked on behalf of, and in conspiracy with, each other (as well as two bankrupt entities, including Holdings); that the Dolan defendants failed to disclose to plaintiffs the development was riven with active landslides and bordered by earthquake faults, as a result of which plaintiffs suffered property damage; that the Dolan defendants failed to disclose the financing risks that put in jeopardy the construction of the highly touted lodge, some of which risks were caused by the cost of soil remediation; and that the Dolan defendants had inadequately remediated the soil.
Following some service issues, in July 2013 a joint answer was filed on behalf of six defendants: Dolan, White Corporation, Voyager, Spanish Peaks Realty LLC, Rivers to Peaks Realty, and American Land Development LLC.
On June 20, 2014, four of the defendants, Dolan, Voyager, Spanish Peaks Realty LLC, and American Land Development LLC filed a motion for summary judgment or, in the alternative, summary adjudication, set for hearing on September 5. It was accompanied by a 23-age memorandum of points and authorities, a separate statement of undisputed material facts, and five declarations, of Dolan, Benjamin Schnayerson, William Genge, Cory Berkram, and Douglas Hein, representatives of the various defendants. The declarations described the defendants, descriptions that included the following:
Spanish Peaks Realty was the exclusive real estate agent for the properties that had been sold by Holdings before it went bankrupt.
Voyager was a private equity firm that invested indirectly in Holdings. It had no active role in the operations of Holdings or the development, and had no dealings whatsoever with any of the plaintiffs.
James Dolan was an officer and/or director of Voyager and Spanish Peaks Realty. He was not involved with the day-to-day management, construction, or administration of the development. And he had no dealings, directly or indirectly, with any of the plaintiffs concerning their purchases.
Defendants' motion addressed in great detail the plaintiffs, their backgrounds, and their acquisitions of the properties. Fleming was described as a speculative investor who purchased nine properties within the development. Flaherty, McGuyer, and DeFelice each purchased a single property, Flaherty purchasing his on the secondary market and not through any entity affiliated in any way with the defendants. The original plaintiff Rush was a former employee of Spanish Peaks Realty, and the seller's agent for many of the properties at issue, who acted as his own agent for one parcel he purchased on the secondary market.
Defendants' motion also described in detail the terms of each of the plaintiffs' purchases. For example, as to the eleven properties purchased from Holdings, each was bought via a purchase and sale agreement under which the buyer represented that he or she would inspect the property and that the seller, Holdings, was not responsible for the condition or value of the property. More specifically, the agreements included provisions that prior to closing the buyer is required to approve the physical condition of the property 20 days after the purchase and sale agreement is executed; that buyer is responsible for the costs associated with any testing of the property that the buyer may wish to conduct; that seller makes no representations regarding soil condition, wetlands, environmental matters, water, or value of the property; and that buyer represents that he or she will fully inspect and examine the property.
In addition, because plaintiffs' complaint included the claimed failure to disclose that some unspecified geotechnical issues rendered their properties unsuitable for building, the motion demonstrated that in fact Holdings commissioned geotechnical testing, which testing showed that "Phase 3A"-the area within the development containing the developed property purchased by the plaintiffs-was suitable for building. Finally, the motion noted that not one plaintiff made any complaint about any undeveloped parcel prior to the time the property was sold in foreclosure.
Speaking of foreclosure, the motion also recited what defendants describe as "a litany of loan defaults, unpaid property taxes, unpaid club dues and charges, foreclosures, trustee sales and one personal bankruptcy. The multitude of financial shortcomings and problems-coming on the heels of the financial crisis, burst real estate bubble, and credit crunch-explains why, despite the absence of geotechnical problems, the Plaintiffs lost so many properties to foreclosure or trustee's sale." Defendants' brief goes on to describe in detail the following facts as to plaintiffs Fleming, Flaherty, DeFelice, and Rush:
Fleming was in default on the bank loan he took out to buy the nine properties in Spanish Peaks
Flaherty was in default on his loan for at least six (perhaps twelve) months prior to foreclosure; he declared bankruptcy four months later; and he testified the recession "ruined his business."
DeFelice was in arrears on his taxes.
Rush was unable to service the debt on the three properties he owned, and lost the property on trustee's sales.
Defendants' motion made several separate arguments in support of the motion, including that: (1) plaintiffs (except for McGuyer) had no standing because they were not the owners of the properties, which were in fact owned by LLCs; (2) plaintiffs could not prove causation; and (3) defendants had no duty to disclose.
As to the lack of causation argument, the motion argued that plaintiffs' primary
Plaintiffs filed their opposition on August 22. And quite an opposition it was-2241 pages. The opposition included a 25-page memorandum of points and authorities, normal enough. It also included two requests for judicial notice seeking judicial notice of over 500 pages of material. And it included eight declarations, including by each of the five plaintiffs, which with attachments totaled 217 pages. The other three declarations were from plaintiffs' attorneys, totaling 1232 pages. Plaintiffs' opposition also included objections to evidence. Finally, and pertinent to the issue here, plaintiffs filed a responsive separate statement, a statement that was 155 pages long.
Defendants filed their reply papers on September 2, including a brief, objections to plaintiffs' evidence, and a response to plaintiffs' separate statement. Significant to the issue here, the first sentence of the introduction on the first page of defendants' reply brief raised plaintiffs' failure to comply with California Rules of Court, rule 3.1350 in their opposition. As defendants described it, "Plaintiffs cite to numerous 'undisputed material facts' for specific arguments in the Opposition, and those 'undisputed material facts' are then supported by multiple paragraphs of multiple declarations, and at
Judge Wong Becomes Involved, and Ultimately Grants Summary Judgment
Two days after defendants' reply was filed, the presiding judge assigned the case to an able, and most experienced, trial judge-the Honorable Garrett L. Wong.
On November 21, Judge Wong continued defendants' motion for summary judgment for hearing to January 16, 2015. In addition, considering the parties' correspondence regarding outstanding discovery and case management matters, Judge Wong issued various orders, including a schedule for the parties to supplement their prior submissions regarding their motion for summary judgment, specifically requiring plaintiffs to supplement their opposition papers.
On December 15, defendants filed their supplemental separate statement, consisting of an additional 189 undisputed material issues/facts, along with claimed supporting
On January 8, 2015, defendants filed a supplemental reply to plaintiffs' supplemental opposition, arguing that plaintiffs not only failed to address defendants' supplemental briefing, but, in defendants' words, "have bombarded the ... Defendants (and the Court), filing 60 separate documents comprised of nearly ten thousand of pages of material ..., including 11 new
On January 13, 2014, Judge Wong issued an order he entitled "Order Mandating Compliance with California Rule of Court 3.1350 and Continuing Hearing on Motion for Summary Judgment/Summary Adjudication to February 6, 2015." Judge Wong continued the hearing because he was unable to evaluate the papers due to both sides' issues with their respective supplemental separate statements. Referring specifically to plaintiffs, Judge Wong observed that they failed to provide pinpoint citations to evidence in their opposition to defendants' supplemental separate statement, which was "a clear violation of subsection (f) of CRC 3.1350." Judge Wong noted that plaintiffs had filed broad citations to facts responding to defendants' 338 UMF, and that plaintiffs had in some cases failed to respond at all to defendants' supplemental separate statement filed on December 15, 2014. Accordingly, he ordered plaintiffs to respond to defendants' separate statement with "pinpoint" citations to facts.
Citing to Parkview Villas , Judge Wong's order noted he was not required to take on the burden of reviewing thousands of pages of evidence submitted with motions for the purpose of determining the basis of a fact where a party has failed to comply with the California Rules of Court regarding separate statement formatting. Both sides were ordered to file corrected supplemental separate statements that complied with all requirements of California Rules of Court, rule 3.1350.
Amended responses to supplemental separate statements were filed by both plaintiffs and defendants on January 30, and plaintiffs filed additional amended responses on February 3. Again, plaintiffs' papers were inadequate. As plaintiffs' themselves describe the situation in their
On February 6 Judge Wong issued his tentative ruling granting the motion for summary judgment. The tentative ruling discussed plaintiffs' failure to comply with California Rules of Court, rule 3.1350, again citing to the holding in Parkview Villas .
Judge Wong heard argument on the motion on February 9, a hearing that was lengthy indeed. During that hearing, plaintiffs' counsel contended that defendants had "no problem" addressing the additional supplemental facts submitted in plaintiffs' supplemental separate statement. Counsel also argued that their original separate statement "was not an issue for the Court," and that the requirement to make the separate statement compliant with the California Rules of Court caught counsel "off guard" after discovery was conducted.
Judge Wong responded that plaintiffs had been on notice of their noncompliant separate statement as early as September 2014, when defendants addressed this issue in their initial reply brief. And, Judge Wong reminded plaintiffs' counsel, he himself had provided notice of the problems with plaintiffs' separate statements on more than one occasion and had given plaintiffs the opportunity to correct the errors in advance of the hearing.
Following the hearing, Judge Wong entered his order granting summary judgment. Judgment was thereafter entered, from which plaintiffs filed a timely appeal.
DISCUSSION
The Summary Judgment Statute-and the Law
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" ( Aguilar v. Atlantic Richfield Co . (2001)
As Witkin describes it, opposition to a summary judgment "must contain a separate statement that (1) indicates whether the opposing party agrees or disagrees with the moving party's assertion that specific material facts are undisputed [citation], (2) sets forth plainly and concisely any other material facts that the opposing party contends are disputed, and (3) refers to the supporting evidence for each contention ( C.C.P. 437c (b)(3)." (
Since the ruling below was one within Judge Wong's discretion, necessarily our standard of review is whether that discretion was abused. ( Collins v. Hertz Corp. (2006)
Attacking Judge Wong's decision, plaintiffs have filed a 76-page, 13,923-word brief that uses the word "discretion" three times, twice in quotations from cases.
Plaintiffs' opening brief then goes on with a 31-page section it refers to as "Discussion," which discussion sets forth six questions it asks the reader. We will answer those questions (to the extent we understand them), but first decide the issue before us: whether Judge Wong abused his discretion. And conclude he did not.
Judge Wong Did Not Abuse His Discretion
We discussed the concept of abuse of discretion at length in People v. Jacobs (2007)
"Various definitions and principles describing the abuse of discretion standard of review have been stated and repeated in numerous cases, such as in Blank v. Kirwan (1985)
We went on to describe other possible descriptions, quoting from City of Sacramento v. Drew (1989)
And we concluded our discussion with this: "All this is well described in Witkin where, likewise citing the still vital Bailey v. Taaffe [ (1866) ]
The law regarding what is required in a responsive separate statement is set forth above. The facts as to what plaintiffs filed, both initially and after Judge Wong's orders, are also set forth. And in the course of the argument on the motion, Judge Wong confronted plaintiffs' counsel concerning what had occurred. This is how he described it:
"THE COURT: One thing: ... I'm saying your oral remarks today omit the fact that the filing on September 2nd-it was a reply brief in response to your motion. In response to the opposition to the motion for summary judgment, there is a statement, at least in the introduction and in the body of the document and again the conclusionary reply, 'The Plaintiffs' opposition is procedurally defective because they have overwhelmed Defendants and the Court with documents and objections.' That in some ways is understood, but more importantly to the Court, Mr. Kelly [counsel for defendants] identifies and says, 'failed to specifically cite to evidence to support their undisputed material facts.'
"[Y]ou are on notice as early as September of last year that this was a problem, but yet you file an opposition-a supplemental opposition here which contains the same problems, as far as the Court's concerned. We give you a warning, and you don't follow through.
"So what's your answer to that? You've at least had two or three warnings from not only Defendants, but from the Court about this issue. Why should I give you
As indicated above, the critical issue of plaintiffs' failure to comply with California Rules of Court, rule 3.1350 was raised in the motion papers,
Judge Wong here did not act arbitrarily. Or whimsically. Or capriciously. And certainly not in any way inconsistent with established law. Indeed, he did precisely what he should have done, illustrated by Parkview Villas , the primary case relied on by plaintiffs.
In Parkview Villas the trial court granted summary judgment to an insurer based on the failure of plaintiff homeowner's association to file an adequate separate statement. The Court of Appeal reversed, but not on any basis offering solace to plaintiffs here. After first confirming the various defects in plaintiff's separate statement there-defects, not incidentally, similar to the defects in plaintiffs' statement here ( Parkview Villas , supra ,
Judge Wong did just as Parkview Villas said. He postponed the hearing, to allow plaintiffs to submit a proper separate statement. Despite this, despite notice and opportunity-indeed, opportunities-to cure the defects, plaintiffs did not. Plaintiffs' proposal for the court "to flip back and forth through their Separate Statement to cross-reference each of Defendants' facts with the facts Plaintiffs cited" in order to make up for plaintiffs' failure to include pinpoint citations to evidence was, according to Judge Wong, easier said than done. It would require the court to cross-reference numerous additional facts plaintiffs included, which Judge Wong noted was unreasonable.
Collins v. Hertz Corp ., supra ,
The court then described the nature of plaintiffs' failure to comply with the rules, and then observed that the "trial court presciently adopted the prudent course outlined by our colleagues later that year in Parkview Villas ." ( Collins v. Hertz Corp., supra ,
Likewise here. Judge Wong's treatment of the situation was careful. And thoughtful. And fair. He did not abuse his discretion.
The Questions in Plaintiffs' Discussion Are All Answered Unfavorably to Plaintiffs
As described above, plaintiffs' brief sets forth six discussion items, all framed as questions, labelled "A" through "F." Items "A," "B," and "C" essentially ask whether the motion should have been denied on the merits, as follows:
"A. Was the Motion for Summary Judgment properly granted as to Defendant Dolan on the grounds that he owed no duty to any Plaintiff in his 'personal' capacity? ....
"C. Should Summary Judgment have been granted in favor of Defendant ALD, and its Manager Defendant Voyager, when there is ample evidence that ALD was retained by the property owner to supervise construction, supervise the geotechnical engineer, obtain entitlements, and determine risk disclosure?"
Plaintiffs devote 18 pages of discussion to these items, setting forth at length plaintiffs' claimed version of the facts pertaining to Dolan, and his claimed involvement in Spanish Peaks, concluding "[t]he evidence of Dolan's direct participation in all decisions regarding the development of Spanish Peaks is overwhelming and undeniable." Such hyperbole is misplaced.
To begin with, this is not germane to the issue before us, and perhaps we need say
By way of background, plaintiffs' opposition below contained a 15-line argument entitled "Defendants Will Not Meet Their Prima Facie Burden on [S]ummary Judgment." The first 11 lines of the argument set forth boilerplate principles of summary judgment procedure, and then concluded with this: "Until Defendants meet this initial burden of disproving Plaintiffs' entire action with admissible evidence, Plaintiffs have no burden to oppose the motion. See e.g. Consumer Cause, Inc. v. SmileCare (2001)
Of course, defendants had offered authorities-more than a little-and also admissible evidence. But beyond that, as shown above there was much more to defendants' motion than the argument that Dolan had no duty. For example, defendants argued that plaintiffs (except McGuyer) were not proper plaintiffs. This shifted the burden to plaintiffs to show that they were. Defendants showed, on at least two separate bases, there was no causation, shifting the burden to plaintiffs to show that there was. Defendants showed there was no failure regarding the soil issue, shifting the burden to plaintiffs
Turning to item "B," concerning defendant Spanish Peaks Realty, plaintiffs again cite to the claimed duty owed by a real estate agent and the various disclosures that an agent must make. And the argument asserts, "Having mounted no evidence that they made appropriate disclosures to Plaintiffs, it is abundantly clear that SPR did not shift the burden of production to Plaintiffs." What was said above regarding item "A" is equally applicable here.
As to item "C," pertaining to defendants American Land Development and Voyager, plaintiffs do not assert that defendants failed to shift the burden. No more need be said.
Items "D," "E," and "F" also ask whether summary judgment should have been denied, but (to the extent we understand the items) apparently not based on any substantive basis, but for procedural reasons. Thus item "D" asks "Should the Court have refused to review Plaintiffs' detailed 'pinpoint' citations to dispositive evidence merely because they were in Plaintiffs' Additional Material Facts?" This question has a subpart, which plaintiffs frame this way: "Did Plaintiffs' marshalling of Undisputed Material Facts 'pinpoint' citations in Plaintiffs' own Additional Material Facts violate the Court's January 13, 2015 Order?" The item goes on to fault Judge Wong for not giving adequate "instruction" to plaintiffs.
To the extent this item asserts that we somehow conclude that plaintiffs did not "violate" Judge Wong's order, we note that he did not grant summary judgment due
Question "E" asks the question "Should Summary Judgment have been denied because Defendants offered 425 Undisputed Material Facts in support of their Motion for Summary Judgment, many of which were irrelevant, vague, and/or argumentative?" We do not understand this. The volume of facts was due to the number of plaintiffs, the number, and variety, of defendants, and the number of properties. In any event, such a claim was not
Question "F" asks: "Should Summary Judgment have been denied on the grounds that Defendants refused to comply with Plaintiffs' discovery requests and valid court orders, and refused to produce any Person Most Knowledgeable on behalf of the corporate defendants?" Apparently plaintiffs are requesting we reverse because somehow Judge Wong proceeded improperly vis-à -vis discovery. We will not.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
We concur:
Kline, P.J.
Stewart, J.
Notes
Rivers to Peaks Realty was a DBA for Spanish Peaks Realty, and thus plaintiffs did not pursue the action against Rivers to Peaks.
Illustrative language from one of the purchase and sale agreements with Holdings was as follows: "Buyer will fully inspect and examine the Property. Buyer is relying on its own independent judgment regarding the Property's value, condition and potential use. Buyer is not relying on any representations or statements of Seller except as expressly contained in this Agreement. Buyer will be taking the Property in an AS IS condition, subject to all defects, whether apparent or latent, now existing or hereafter discovered. Buyer acknowledges that neither Seller nor any of its agents or employees has made any warranties or representations upon which Buyer has relied concerning: (a) the investment value of the Property, (b) utility rates or charges, (c) the possibility or probability of profit or loss resulting from ownership of the Property, or (d) the tax consequences that may result from the purchase of the Property."
Fleming had numerous real estate holdings, including a home in Denver; a farm in Wisconsin that he turned into a residential development of several hundred homes; a condominium in Vail; and numerous properties in Mexico. He also rented homes in Chicago and Palm Beach County, Florida.
The fifth plaintiff, McGuyer, continued to own the cabin he bought from Holdings. The cabin experienced some problems caused by post-construction soil settlement, and was largely repaired at a cost of $11,000, which McGuyer paid. McGuyer is satisfied with the cabin following the repairs, and indeed had praise for the Spanish Peaks development and its amenities, and hopes to continue to use them. McGuyer testified that he did not know any of the defendants, and did not know what they did or failed to do that was wrong. Nevertheless, after meeting with Fleming and Rush, McGuyer joined the lawsuit.
On December 18, plaintiffs filed blanket objections to defendants' separate statement, broadly citing to the recently submitted evidence which consisted of the declaration of Dolan's recent deposition, reserving the right to make appropriate objections to evidence at the hearing. In addition, plaintiffs disputed defendants' undisputed material facts citing to declarations of various parties, and broadly citing to their new additional facts 1-155.
Here are the three references to "discretion":
"First, Parkview requires of denial of Defendants' Motion, not the granting of it. ... Nonetheless, the Parkview court held that the trial court did not have the discretion to enter a judgment for failure of specific citations:
"[A] trial court faced with an opposing party's defective statement plainly indicating which proposed material facts are disputed and including at least general references to the evidence supporting its position does not have the discretion to enter a judgment against that party solely as a result of that party's failure ... to provide sufficiently specific citations to the evidence supporting its position.
"Terminating sanctions have been held to be an abuse of discretion unless the party's violation of the procedural rule was willful ... or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing less severe sanctions would not produce compliance with the procedural rule."
The second subquestion reads as follows: "2. Assuming arguendo some technical breach of the Court's January 13, 2015 Order requiring 'pinpoint' citations, did such a breach permit the Court to ignore Plaintiffs' Additional Undisputed Material Facts containing pinpoint citations?"