Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Ito v. Brighton/Shaw

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 13, 2009

NAOKO ITO, ET AL., PLAINTIFFS,
v.
BRIGHTON/SHAW, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER DENYING CROSS-DEFENDANT CRAIG DAVIS'S EX PARTE APPLICATION FOR ORDER CORRECTING AND MODIFYING COURT'S DECEMBER 24, 2008 ORDER ON DAVIS'S MOTION FOR SUMMARY JUDGMENT and related cross-claims. (Document #237)

On June 5, 2008, Cross-Defendant Craig Davis ("Davis") filed a motion for summary judgment as to Robert Carson's ("Carson") first, second and third causes of action. Carson's first cause of action alleges legal malpractice. Carson's second cause of action alleges breach of fiduciary duty. Carson's third cause of action alleges breach of contract. On August 8, 2008, this court issued an order denying Davis's motion for summary judgment on Carson's first and third causes of action and granting Davis's motion on Carson's second cause of action. (Document #171.)

On October 17, 2008, Davis filed a second motion for summary judgment as to Carson's first and third causes of action. Davis's motion was based on alleged new facts or circumstances, namely Carson's deemed admissions to Davis's second request for admissions.

On December 24, 2008, Magistrate Judge Beck granted Carson's motion to withdraw his deemed admissions.

On December 24, 2008, this court denied Davis's second motion for summary judgment on Carson's first and third causes of action based upon this court's previous August 8, 2008 summary judgment order and based on Magistrate Judge Beck's evidentiary ruling.

On December 31, 2008, Davis filed an ex parte application for an order correcting and modifying the court's December 24, 2008 denial of Davis's second motion for summary judgment. Davis contends that this court's reasoning is "palpably incorrect" as to Carson's first cause of action because Davis alleges that this court's sole basis for denying Davis's motion was based on a purported erroneous belief that Magistrate Judge Beck's ruling on Carson's motion to withdraw his deemed admissions was dispositive of Davis's motion for summary judgment.

First, contrary to Davis's assertion, this court's December 24, 2008 denial was not solely based on Magistrate Judge Beck's evidentiary ruling but instead explicitly stated that it was also based on its previous August 8, 2008 summary judgment order, which fully addressed and denied Davis's very same summary judgment arguments as to Carson's first and third causes of action.

Second, this court has reviewed all of Davis's alleged additional new facts and circumstances, namely Carson's December 8, 2008 responses to Davis's second set of undisputed facts, and finds that they do not alter the court's August 8, 2008 findings.*fn1 Davis contends that Carson's responses to Davis's second set of undisputed facts establish that "there is no evidence before the Court creating a material issue of fact as to whether Davis in fact knew of the Plaintiffs'*fn2 competing claims." (See Davis ex parte application at page 5.) For example, Davis contends that Carson's response to Davis's undisputed fact No. 11: "Carson believed that Quiring did have such authority [to transfer the units] and communicated that belief to Davis, he specifically retained Davis to confirm the legal basis of that authority," does not prove that Davis in fact knew of a competing claim. (Id.) This statement presupposes whether there was sufficient authority.

While Davis is correct that Carson's above quoted response does not establish that Davis in fact knew of Plaintiffs' competing claims in the 12 units, this finding does not warrant granting summary judgment in Davis's favor. Such a finding would be sufficient to defeat summary judgment in favor of Carson on this issue if Carson was the moving party. However, the legal question here is whether Davis raises any new evidence that would warrant granting summary judgment in favor of Davis, the moving party.

In order to succeed on his second quest for summary judgment, Davis would need to provide new evidence that would prove that Davis was in fact not aware of a competing interest in the 12 units. However, Carson's response does not establish this evidence as his response does not speak to whether Davis was in fact aware of the competing interests in the 12 units. While Davis may disagree with Carson's contention that Carson disclosed any potential competing interests, this merely confirms that a factual dispute still exists. Accordingly, Davis's new evidence does not negate the court's August 8, 2008 finding that a factual dispute still exists as to Davis's awareness of a competing ownership interest in the 12 units and Carson's disclosure or obfuscation of that information.

Additionally, the court has reviewed Davis's other examples of Carson's purported admissions and finds that they are without merit. Accordingly, Carson's December 8, 2008 responses do not act as fatal admissions as Davis would like the court to believe and the court maintains that a factual dispute still exists as to Davis's knowledge of a competing ownership claim in the 12 units. Moreover, Davis has not provided the court with any new evidence that nullify's the court's August 8, 2008 finding that Carson does not need to provide expert testimony to prove his attorney malpractice claim.

Therefore, Davis's ex parte motion is denied in light of this court's August 8, 2008 denial of Davis's first motion for summary judgment and Magistrate Judge Beck's ruling.*fn3

ORDER

Based on this court's August 8, 2008 summary judgment order and Magistrate Judge Beck's December 12, 2008 order, the court ORDERS that Davis's ex parte application for an order correcting and modifying the court's December 24, 2008 denial of Davis's motion for summary judgment as to Carson's first and third causes of action is DENIED.

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.