A)Summary Judgment as to the Complaint

Plaintiff/Cross-Defendant Balboa Capital Corporation (“Plaintiff”) unopposed Motion for Summary Judgment or in the Alternative Summary Adjudication (“MSJ”) is GRANTED in part and DENIED in part.

The MSJ is granted as to adjudication on the 1st, 3rd, and 4th causes of action.  It is denied as to adjudication of the 2nd cause of action.

Some judicial history on this matter is necessary.  On 10/21/19, this Court originally granted this unopposed MSJ.  On 10/31/19, defendants Jose M. Lozano, M.D., P.A., and Jose Lozano (“Defendants” together) filed their Motion to Set Aside Judgment (“MSA”).  On 01/07/20, the Court granted the MSA and set aside its ruling on the MSJ.  Defendants were permitted to file and serve pleadings opposing the MSJ no later than 02/28/20.  Plaintiff was permitted to file and serve its Reply no later than 03/06/20.  The Court email served the parties its ruling on 01/07/20.

Despite being granted leave to file an opposition to the current MSJ hearing, Defendants have for some reason again filed no opposition to the MSJ.  As this point, it appears that Defendants have no valid opposition to the MSJ and that it should be granted (in part) on the merits as laid out below.

As there have been no new pleadings filed with regard to the MSJ, the Court’s original analysis continues to apply as provided below.  The Court does note that on 10/23/19, Plaintiff dismissed its 2nd cause of action to the Complaint without prejudice.  The Court has included analysis on the 2nd cause of action below as it was included in Plaintiff’s arguments.  The analysis is not meant to suggest that the 2nd cause of action was retroactively reinstated with the granting of Defendants’ MSA.  The 2nd cause of action remains dismissed without prejudice at this time.

As to the merits of the MSJ, “[a] plaintiff . . . has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.  Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The defendant or cross-defendant 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 facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”  [Emphasis added.]  CCP 437c(p)(1).

“A plaintiff may. . . move for summary adjudication of a cause of action, if the plaintiff asserts there is “no defense” to that cause of action.  Further, the plaintiff’s burden of proof on such a motion is . . . [that] the plaintiff must “prove[ ] each element of the cause of action entitling the party to judgment on that cause of action.”  [Emphasis added.]  Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal. App. 4th 226, 241.

As to causes of action 1, 3, and 4, Plaintiff has made arguments, provided evidence and proved each element of these causes of action.  Defendants provided no opposition, arguments, or evidence that would show there are any triable issues of material fact as to these three causes of action.  Therefore, adjudication in favor of Plaintiff on these three causes of action is granted.

Unfortunately for Plaintiff, it provided absolutely no arguments or undisputed facts as to cause of action No. 2 regarding recovery of personal property.  As Plaintiff failed to prove any of the elements for recovery of personal property, adjudication as to this cause of action is denied.

  1. B)Summary Judgment as to the Cross-Complaint

Plaintiff’s MSJ is granted as to each of the five causes of action in Defendants’ Cross-Complaint (“CC”).

Again, as with the MSJ to the Complaint, Defendants provided no opposition to the MSJ to the CC.  The Court’s analysis remains the same for this hearing as it was for the 10/21/19 hearing.

As Plaintiff is technically a cross-defendant under the CC, the requirements for prevailing on an MSJ are a little different.

“A . . . cross-defendant has met his or her 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.  Once the defendant . . . has met that burden, the burden shifts to the . . . 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 . . . 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 facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”  [Emphasis added.]  CCP 437c(p)(2); Marshak v. Ballesteros (1999) 72 Cal. App. 4th 1514, 1518.

Plaintiff has negated at least one element as to each of the causes of action in the CC and, therefore, has met its initial burden under CCP § 437c(p)(2).  The burden then shifted to Defendants to, “show that a triable issue of one or more material facts exists as to the cause of action.”  CCP 437c(p)(2).  Defendants provided no opposition, arguments, or evidence that would show there are any triable issues of material fact as to any of the causes of action.  As such, the MSJ is granted as each cause of action in the CC.

Plaintiff is ordered to give notice.