APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge. Reversed with directions. (Super. Ct. No. CV022732).
The opinion of the court was delivered by: Blease, J.
CERTIFIED FOR PUBLICATION
This case illustrates the primacy of the complaint in measuring the materiality of the facts which a motion for summary judgment must address. It involves the relationships of at least four subdivisions of the summary judgment statute. (Code Civ. Proc., § 437c, subds. (b)(1),*fn1 (b)(2),*fn2 (b)(3)*fn3 and (p)(2).*fn4)
The trial court granted defendants‟ motion for summary judgment on the ground that plaintiff failed by one day to file a timely opposition statement of disputed material facts. (§ 437c, subd. (b)(2).) It said the failure was "a sufficient ground, in the court‟s discretion, for granting the motion" pursuant to subdivision (b)(3). The court further found that defendants set forth a prima facie case for judgment with their moving papers and evidence. (See § 437c, subd. (p)(2).)
We shall conclude that the late filing of an opposition statement does not violate the policies of subdivisions (b)(2) or (b)(3) of section 437c and that, because the moving parties‟ separate statement (§ 437c, subd. (b)(1)) did not address a material fact in the complaint, it did not assert a prima facie case of entitlement to a summary judgment and did not shift the burden to plaintiff to file an opposing separate statement (§ 437c, subd. (p)(2)).
The parties have interests in or control of the properties of the partnership of two brothers, George and Charles Besotes. As part of their estate planning, the brothers established separate trusts that provided for an exchange of the brothers‟ interests in four real properties owned by the partnership on the death of either partner. One of the properties is known as the Waterloo Road property. It was removed from the exchange provisions by amendment of the George C. Besotes 2000 Revocable Trust (the George trust). Charles died in August of 2002*fn5 and plaintiff, as trustee of the George trust, conveyed the Waterloo property to the Charles Besotes and Ann G. Besotes 2000 Revocable Trust (the Charles trust) pursuant to the exchange provisions of the unamended George trust.
Plaintiff brought this action against defendants, who have interests in the Charles trust, to recover George‟s interest in the Waterloo Road property for his heirs on the ground plaintiff mistakenly conveyed it because plaintiff was unaware the George trust had been amended. The operative complaint recites the provisions of the trust amendment and alleges that, as a result, George‟s interest in the Waterloo Road property "no longer [was] subject to the exchange "agreement‟. . . ." A copy of the trust amendment is attached to plaintiff‟s initial complaint and is part of defendants‟ moving papers.
Defendants‟ answer did not deny the existence of the trust amendment nor deny "that as a result . . . the Waterloo Road property was no longer subject to the exchange agreement . . . ." Rather, it said the latter allegation "contains a legal conclusion to which no response is needed."
On appeal, defendants do not contest the fact of the trust amendment or challenge its legal effect. They base their summary judgment motion on the unamended provisions of the George trust. This violates the fundamental rule that the moving papers shall respond to the "material facts" of the complaint. (§ 437c, subd. (b)(1).) "The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute." (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 604-605.) "The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)
The trial court granted the motion for summary judgment under section 437c, subdivision (b)(3) because plaintiff was one day late in filing an opposing statement of disputed material facts (id., subd. (b)(2)). However, plaintiff was not obligated to respond to a material fact that was not in dispute. (Assad v. Southern Pacific Transportation Co. (1996) 42 Cal.App.4th 1609, 1614.) A summary judgment may not be granted when the moving party has failed to "refute [a] tenable pleaded theor[y]." (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942.)
Moreover, it was an abuse of discretion for the court to impose a terminating sanction for a mere violation of a procedural rule. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364, fn. 16; Security Pacific Nat. Bank. v. Bradley (1992) 4 Cal.App.4th 89, 98.) Although plaintiff was one day late in submitting a separate statement of disputed material facts (§ 437c, subd. (b)(2)), the moving party did timely reply (id., subd. (b)(4)), giving the trial court adequate time to consider the matter before the hearing on the motion.
This leaves defendants with the claim that because the plaintiff failed to timely file an opposition statement the court was authorized to exercise its discretion under section 437c, subdivision (b)(3) to rule on the basis of the moving party‟s allegations of undisputed fact, i.e., to recharacterize plaintiff‟s cause of action. They argue: "If [plaintiff] wanted to argue the alleged trust amendment somehow made the transfer improper, [plaintiff] was required to -- but did not -- offer that evidence in opposition to [defendants‟] Motion." (Italics added.) We disagree.
Defendants‟ argument assumes that the discretionary provisions of section 437c, subdivision (b)(3) stand alone, unrelated to the other provisions of section 437c. The assumption is incorrect. As noted, section 437c, subdivision (b)(3) is subject to subdivision (b)(1). Moreover, section 437c, subdivision (p)(2) provides that "the party moving for summary judgment bears an initial burden of production [of evidence] to make a prima facie showing of the nonexistence of any triable issue of material fact . . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)*fn6
This presupposes the party has fulfilled its obligation to advance a material fact as undisputed. (§ 437c, subd. (b)(1).) Since there was no such fact there was nothing to oppose (id., subd. (b)(3)) and consequently no need for supporting evidence.
For these reasons the trial court abused its discretion in granting a summary judgment to defendants.
Lastly, as to two other causes of action defendants wrongly place the burden on plaintiff. Defendants‟ burden of production is to show that ""one or more elements of‟ the [plaintiff‟s] "cause of action‟ . . . "cannot be established‟ . . . ." (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) The burden can be satisfied by a showing that "the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . ." (Aguilar, supra, at p. 854.) "If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. "The moving defendant whose declarations omit facts as to any such theory . . . permits that portion of the complaint to be unchallenged.‟" (Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13 [Citation omitted].)
In this case plaintiff seeks evidence in the possession of defendants to establish that they wrongfully appropriated or retained $100,000 of receipts from the brothers‟ partnership. The purpose of an accounting is to discover evidence, and plaintiff cannot be faulted for having failed to produce what plaintiff did not possess. As to the second claim regarding the wrongful appropriation of $100,000 of the partnership assets, defendants produced no evidence that they had a right to the $100,000. Accordingly, they cannot carry their burden of negating an element of plaintiff‟s cause of action predicated upon entitlement to the money.
We shall reverse the judgment and direct that the trial court deny the motion for summary judgment.*fn7
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is the sister of two deceased brothers, George and Charles Besotes. Ann Besotes was married to Charles Besotes. Yvonne McLoughlin was Charles‟s daughter. She is married to James McLoughlin. George Besotes‟s wife predeceased him. They had no children.*fn8
Ann and Charles were married in 1937. At that time Charles and George were working with their father in the produce business. Later, the brothers were in partnership in a boat building business. The partnership also purchased several parcels of real estate.
In late 1999, the brothers went to see their attorney for estate planning. Part of their discussion included the division of their real property. The trust eventually created for Charles and Ann (the Charles trust) is not a part of the record, but the treatment of the real property is reflected in the George trust. Article five, paragraph C of the trust provides as follows:
"Upon the death of either the settlor or Charles Besotes, the trustee shall exchange with the trustee of the Charles Besotes and Ann G. Besotes 2000 Revocable Trust, real properties of each trust as follows: The trustee of the George C. Besotes 2000 Revocable Trust shall deed to the trustee of the Charles Besotes and Ann G. Besotes 2000 Revocable Trust all of the settlor‟s interest in the real properties located at 1937 and 1945 N. Wilson Way . . . , 1936 and 1938 Auto Avenue . . . , and 2605, 2615, and 2621 Waterloo Road . . . , all in Stockton, California. Simultaneously, and as consideration for the transfer, the trustee of the Charles Besotes and Ann G. Besotes 2000 Revocable Trust shall deed to the trustee of the George C. Besotes 2000 Revocable Trust all of the Charles Besotes and Ann G. Besotes Trust interest in the real property located at 1900 N. Wilson Way . . . , Stockton, California."
George was the sole trustee of the George C. Besotes 2000 Revocable Trust. Charles was named the first successor trustee, and plaintiff the second successor trustee. The trust provided that on the death of either brother, the estate would be distributed to various nieces and nephews, with the largest share, 20 percent, going to plaintiff.
On June 26, 2002, George executed the First Amendment to the George trust. It provides in pertinent part:
"Article Five, paragraph C., is amended to delete any reference therein to Settlor‟s interest in property commonly known as 2605, 2615, and 2621 Waterloo Road, Stockton, California . . . due to Settlor‟s desire to sell said property. All other terms of Article Five, paragraph C. shall remain unchanged except for this deletion and modification."*fn9
Charles died on August 24, 2002.*fn10 A few days later, on September 6, 2002, plaintiff and defendants met to accomplish the property transfer described in the trusts.*fn11 Notwithstanding the amendment removing the Waterloo Road property from the George trust, plaintiff signed a deed to the Waterloo Road property to the Charles trust as if the property were still subject to the unamended trust provisions.
Plaintiff filed an action as successor trustee to the George trust, seeking to recover a one-half interest in the Waterloo Road property for George‟s heirs, as well as approximately $100,000 that plaintiff alleged was transferred by Charles from George‟s bank account to Charles‟s bank account in June 2001. The trial court sustained defendants‟ demurrer to five of plaintiff‟s eight causes of action.
After the case was consolidated with another action, filed by plaintiff individually, and in her capacities as successor trustee and personal representative of George Besotes, plaintiff filed a consolidated and amended complaint. The consolidated complaint alleged inter alia that Charles had unduly influenced George with respect to the property transfers contained in the George trust, and had taken, secreted, appropriated, and/or retained the $100,000 sum "to a wrongful use or with an intent to defraud, or both."
Defendants again demurred on the ground that plaintiff‟s complaint based upon Charles‟s conduct violated the one year statute of limitations measured from the date of Charles‟s death. The trial court sustained the demurrer without leave to amend as to the cause of action for fraud and unfair business practices, as well as to all claims based on Charles‟s conduct. The trial court also granted defendants‟ motion to strike the portions of the complaint based on the actions of Charles or based on the derivative liability for his actions.
Plaintiff then filed a second amended and consolidated complaint, which is the complaint to which the summary judgment motion is addressed. As is relevant to this appeal, the complaint alleged: (1) that Ann, with assistance from Yvonne and James, "took, secreted, appropriated, and/or retained" the $100,000 sum from George "to a wrongful use or with an intent to defraud, or both[;]" that defendants took and concealed George‟s interest in real property; (3) that George amended his trust on June 26, 2002, to delete from Article Five, paragraph C of the trust any reference to the Waterloo Road property; (4) that plaintiff deeded the George trust‟s 50 percent interest in the Waterloo Road property to the Charles trust without knowing about the June 26, 2002, amendment;*fn12 and (4) that defendants were aware of the trust amendment. Plaintiff also alleged that before the death of Charles, and continuing to November 2003, defendants "took control of the assets and operations of a business known as the Besotes Brothers Partnership[,]" that defendants did so to the detriment of George and his heirs, and requested an accounting.
The second amended and consolidated complaint alleges nine claims for relief, characterized as follows: (1) abuse of elder and/or dependent adult, (2) breach of confidential relationship, (3) undue influence, (4) declaratory relief, (5) cancellation of deeds, (6) quiet title, (7) accounting, (8) constructive trust, and (9) conspiracy.*fn13
As noted, George amended his trust on June 26, 2002 (the First Amendment), to delete from Article Five, paragraph C of the trust any reference to the Waterloo Road property. The First Amendment is set forth in full in paragraph 18.15 of the second amended and consolidated complaint, the subject of the summary judgment motion, and a copy of the First Amendment is attached to plaintiff‟s initial complaint as part of Exhibit A (the George C. Besotes 2000 Revocable Trust).*fn14 The complaint alleges, in the second paragraph of paragraph 18.15, that "[a]s a result of the First Amendment, ...