Preview
© e
NGIOIMAL
UN POUVAL
DOWNEY BRAND LLP FILED
SSD)
WILLIAM R. WARNE (Bar No. 141280)
bwarne@downeybrand.com
N
ANNIE S. AMARAL (Bar No. 238189) JUN - 7 202
aamaral@downeybrand.com {
Ww
BRADLEY C. CARROLL (Bar No. 300658)
bearroll@downeybrand.com By J. Jackson, D p rk
-&
621 Capitol Mall, 18 Floor
Sacramento, California 95814 ( ae
aA
Telephone: 916.444.1000
Facsimile: 916.444.2100
ND
Attorneys for Plaintiff CHARLES SOMERS,
individually and as trustee for the CHARLES
SOMERS LIVING TRUST
eo
SUPERIOR COURT OF THE STATE OF CALIFORNIA
oOo
10 COUNTY OF SACRAMENTO
11
2 CHARLES SOMERS, individually and as Case No. 34-2018-00229212
trustee for the CHARLES SOMERS LIVING a
BRAND LLP
13 TRUST, [PROPOSED] ORDER DENYING
DEFENDANT’S MOTION FOR
14 Plaintiff, SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, SUMMARY
15 v. ADJUDICATION
DOWNEY
16 DR. JAMES LONGORIA, an individual, and | Date: April 14, 2023 BY FAX
DOES 1-10, Time: 8:30 a.m.
17 Dept.: a9
Defendant. Judge: Hon. Peter K. Southworth
18
Action Filed: March 16, 2018
19 Trial Date: October 16, 2023
20
21 On April 14, 2023, Defendant Dr. James Longoria’s Motion for Summary Judgment, or in
22 the Alternative, Summary Adjudication (“Motion”) came on for hearing before this Court, Judge
23 Peter K. Southworth presiding, Department 39. Annie S. Amaral and Bradley C. Carroll of
24 Downey Brand LLP appeared for Plaintiff Charles Somers, individually and as trustee for the
25 Charles Somers Living Trust (“Somers”) and Mark E. Ellis of Ellis Law Group, LLP appeared for
26 Defendant Dr. James Longoria (“Dr. Longoria.”’).
7 ///
28 ///
1864658v1
[PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
v e
At the hearing, the Court heard oral argument on the Motion. At the end of the hearing,
the Court ordered the parties to filg-and serve supplemental briefs regarding the statute of frauds
NO
on the oral ont adtfong, bec filed and served their respective briefs on April 28, 2023.
WOW
Except for as set forth in the attached Exhibit A, the Court considered all briefs, papers,
Fe
declarations, evidence, exhibits, and all other written submissions of the parties and all arguments
nN
of counsel. Good cause appearing therefor:
Dn
IT IS HEREBY ORDERED THAT the Motion is DENIED in full as more specifically set
NN
forth in the Court’s May 24, 2023, Order, a true and correct copy of which is attached hereto as
mea
Exhibit A, and incorporated by this reference.
oo
IT IS SO ORDERED.
CO
SFellhr EES|ll
KF
Dated: hy
NY
Midge of the Superior Court
BRAND LLP
OO
9
WO
OOF
PETER K. SOUTHWORTH
FSF
KF
APPROVED AS TO FORM:
KF
HA
DOWNEY
KF
DATED: June 1, 2023 DOWNEY BRAND LLP
ANY
KF
BH
by. Le Co
FHF
BO
HF
WILLIAM R. WARNE
COD
ANNIE S. AMARAL
NO
BRADLEY C. CARROLL
NO
KF
Attorneys for Plaintiff CHARLES SOMERS,
individually and as trustee for the CHARLES
NY
NO
SOMERS LIVING TRUST
WY
NO
fF
NHN
Un
NO
Dn
NO
///
wNoO
oN
///
oO
1864658v1 2
[PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
© e
WN
WwW DATED: , 2023 ELLIS LAW GROUP, LLP
By:
MARK E. ELLIS
—&
Attorneys for Defendant
DR. JAMES LONGORIA
nO
DD
NN
Oo
o
10
11
12
BRAND LLP
13
14
15
DOWNEY
16
17
18
19
20
21
29
23
24
25
26
27
28
1864658v1 3
[PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
q) @
PROOF OF SERVICE
Somers v. Longoria, et al.
NN
Case No. 34-2018-00229212
-Ww
At the time of service, I was over 18 years of age and not a party to this action. Iam
employed in the County of Sacramento, State of California. My business address is 621 Capitol
Mall, 18th Floor, Sacramento, CA 95814.
NHN
On June |, 2023, I served true copies of the following document(s) described as
[PROPOSED] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the
interested parties in this action as follows:
eo
Mark E. Ellis Attorneys for Defendant, DR. JAMES
Ellis Law Group LLP LONGORIA
oo
1425 River Park Dr., Ste 400
10 Sacramento, CA 95815-4524
Ph: (916) 283-8820
11 Fax: (916) 283-8821
Email: mellis@ellislawgrp.com
12
BRAND LLP
13
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
14 persons at the addresses listed in the Service List and placed the envelope for collection and
mailing, following our ordinary business practices. I am readily familiar with the practice of
15 Downey Brand LLP for collecting and processing correspondence for mailing. On the same day
that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
DOWNEY
16 business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I
am a resident or employed in the county where the mailing occurred. The envelope was placed in
17 the mail at Sacramento, California.
18 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
19
Executed on June 1, 2023, at Sacramento, California.
20
21 omy 8 Cat
22 Tammy Castro
23
24
25
26
27
28
1864658v1 4
[PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
u e
EXHIBIT A
EXHIBIT A
@ 6
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
Charles Somers individually and as No. 34-2018-00229212-CU-FR-
trustee for the Charles Somers GDS
Living Trust
Plaintiff/Petitioner(s) Date: 05/24/2023
Vs. Time: 11:36 AM
Dr. James Longoria et al Dept: 39
Eee EEE ON ONE Judge: PeterK. Southworth
ORDER re: Ruling on Submitted Matter
(Motion for Summary
Judgment) Taken Under
Submission on April 28, 2023
The matter came before the Court on April 14, 2023 in Department 39 for oral argument. The
Court heard argument on the Motion for Summary Judgment and additional briefing was
ordered. The parties filed their supplemental briefs and the Court took the matter under
submission on April 28, 2023.
Having taken the matter under submission the Court now issues the following ruling:
Defendant Dr. James Longoria (“Longoria’”’)’s Motion for Summary Judgment and, alternatively
Summary Adjudication of each cause of action is denied.
Rulings on Evidentiary Objections
Plaintiff's Evidentiary Objections (Nos 1-10) are ruled on as follows:
Somers Deposition - Sustained as to 1 (overruled as to page 86 only), Overruled as to 2.
Silva Deposition and Exh. 15 (email) — Sustained as to 3 (overruled as to page 214 only).
Sustained as to 4.
Longoria Declaration— Overruled as to 5. Overruled as to 6, except sustained as to J 13
(lack of foundation) only. Sustained as to 7, 8.
Exhibits 25 and 26 (emails) — Sustained as to 9 and 10.
Defendant’s Evidentiary Objections (Nos 1-82) are ruled on as follows:
Warne Declaration, Ex. C (Action by Consent): Overruled as to 1.
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Page 1 of 13
Taken Under Submission on April 28, 2023 9
« e
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
Somers Declaration (and various attached documents and emails) — Overruled as to 2-82.
Background
Longoria is moving for summary judgment and/or summary adjudication of claims asserted by
plaintiff Charles Somers, individually and as trustee for the Charles Somers Living Trust
(“Somers”). Somers alleges in his Second Amended Complaint (“SAC”) the following causes of
action: promissory fraud (1* -3'), negligent misrepresentation (4"), breach of fiduciary duty
(5), and breach of oral contract (6" -8").
This is a business dispute relating to LC Therapeutics, Inc. ("LCT"), an S corporation. According
to plaintiff, he and defendant were friends and business associates years before they became
business partners in LCT, a business founded by defendant in 2013. LCT was in the business of
manufacturing medical devices invented by defendant. Somers asserts he invested in LCT in
reliance on a number of promises by defendant including that if plaintiff became a shareholder,
defendant would convert LCT from an S corporation to an LLC, that plaintiff could obtain more
equity in LCT as consideration for additional cash infusions, and that plaintiff would have equal
say in all decision-making. Plaintiff alleges these representations were knowingly false at the
time they were made, and that they induced him into making the cash contributions. Plaintiff
alleges he discovered the misrepresentations when defendant reneged on his promises after
plaintiff refused to contribute additional funds in 2018.
Defendant’s motion is made on the grounds that (1) undisputed material facts establish that
plaintiff is unable to prove one or more of the prima facie elements of each of the 8 causes of
action asserted, as well as the punitive damages claim in their operative SAC, and/or (2) each
claim is subject to defenses, including, but not limited to, the defenses of the statute of
limitations, statute of frauds, the individual plaintiff's lack of standing, and lack of the proper
party defendant.
As a threshold matter, Plaintiff argues (and the Court agrees) that the Separate Statement does
not comply with the Code of Civil Procedure (“CCP”), section 437c(b)(1), in that it does not
plainly and concisely set forth all material facts as to each cause of action that are undisputed.
The 511 facts set forth as undisputed facts are repetitive for each cause of action and fail to focus
on the specific elements and defenses to each cause of action. Many of the facts are seemingly
irrelevant as they are not referred to in the points and authorities and appear to have nothing to
do with the arguments made therein. Many facts set forth as material are instead “attributive
facts” that are appropriately stricken from the separate statement. Defendant repeatedly frames
facts as "admissions"," "understandings," or "thoughts" from various depositions of other parties.
Courts have "emphatically condemn[ed]" this practice and those facts are properly not
considered. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106.) These defects
render the separate statement unduly unwieldy and difficult to navigate. Although CCP section
437c(b)(1) states that the court has discretion to deny the motion for failure to comply with this
section, the Court is reaching the merits of the motion.
Authority
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 2 of 13
q @
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
The Court must grant a motion for summary judgment if all the papers submitted show that there
is no triable issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. (CCP § 437c(c); Mann v. Cracchiolo (1985) 38 Cal. 3d 18, 35.) Section 437c(c)
imposes an affirmative duty on a Court to grant summary judgment in appropriate case. (Preach
v. Moister Rainbow (1993) 12 Cal. App. 4th 1441, 1450.) The Court must decide if a triable issue
of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to
determine it. (Pittelman v. Pearce (1992) 6 Cal. App. 4th 1436, 1441; see also Seibert Sec.
Servs., Inc. v. Superior Court (1993) 18 Cal. App. 4 394, 404). Summary judgment is properly
granted only if the moving party's evidence establishes that there is no issue of material fact to be
tried. (Lipson v. Superior Court (1982) 31 Cal. 3d 362, 374; Huynh v. Ingersoll-Rand (1993) 16
Cal. App. 4th 825, 830.) The court may not grant summary judgment when any material factual
issue is disputed.
In evaluating a motion for summary judgment or summary adjudication the court engages in a
three-step process. The Court first identifies the issues framed by the pleadings. The pleadings
define the scope of the issues on a motion for summary judgment or summary adjudication. (/-PI
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.
An issue that is "within the general area of issues framed by the pleadings" is properly before the
court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v.
Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an un-pleaded issue
in ruling on motion for summary judgment or adjudication. (Roth v. Rhodes (1994) 25
Cal.App.4th 530, 541). The papers filed in response to a defendant's motion for summary
judgment 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.)
Second, the Court is required to determine whether the moving party has met its burden. A
defendant moving for summary judgment bears the burden of persuasion that one or more
elements of the plaintiff's cause of action cannot be established, or that there is a complete
defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850,
quoting CCP §437c(p)(2).) A defendant is not required to conclusively negate one or more
elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763,
780-781.) Rather, to meet its burden, the defendant is required only to show that the plaintiff
cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot
reasonably obtain evidence necessary to show this element. (Aguilar v Atlantic Richfield Co.,
supra, 25 Cal 4th at pp. 853-855.)
Finally, once the moving party has met its burden, the burden shifts to the opposing party to
show that a material factual issue exists as to the cause of action alleged or a defense to it. (CCP
437c(p); see Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.) “There is
a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact
to find the underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co, supra, 25 Cal.4th 826, 845.) In
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 3 of 13
u e
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
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. (/d. at p. 843.)
The separate statement and the opposing separate statement are intended to permit the judge to
determine quickly whether the motion is supported by sufficient undisputed facts. If the
opposing statement disputes an essential fact alleged in support of the motion, the judge merely
has to review the evidence in support of that fact. This saves the judge from having to review all
the evidentiary materials filed in support of and in opposition to the motion. Ifa triable issue is
raised as to any of the facts in a separate statement, the motion must be denied. A party moving
for summary judgment concedes the materiality of each fact enumerated in its separate statement
and, as a consequence, cannot argue that the motion should be granted because one or more of
these facts are not truly material. (Nazir v United Airlines, Inc. (2009) 178 Cal.App.4th 243,
252.) As the Nazir court noted, the facts enumerated in a moving separate statement have a due-
process dimension in that they define for the opposing party the facts which, if disputed with
admissible evidence, result in the motion being denied. (Jbid. [citation omitted].)
Promissory fraud
Defendant contends plaintiff cannot prevail on the first three causes of action for fraud because
defendant did not make any actionable misrepresentations, and that plaintiff will not be able to
show reasonable reliance or damages. Defendant further contends the three fraud causes of
action are barred by the statute of limitations.
Promissory fraud is a subspecies of fraud and deceit. A promise to do something necessarily
implies the intention to perform; hence, where a promise is made without such intention, there is
an implied misrepresentation of fact that may be actionable fraud. (Engalla v. Permanente
Medical Group, Inc. (1997) 15 Cal.4 951, 973-974 (internal citations omitted)). As a subspecies
of fraud and deceit, promissory fraud requires proof of "(1) a promise made regarding a material
fact without any intention of performing it; (2) the existence of the intent not to perform at the
time the promise was made; (3) intent to deceive or induce the promisee to enter into a
transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the
promise; and (6) resulting damage to the promise[e]." (Gruber v. Gruber (2020) 48 Cal.App.Sth
529, 540, citing, Engalla, supra, 15 Cal.4" at p. 973.) "Predictions as to future events, or
statements as to future action by some third party, are deemed opinions, and are not actionable
fraud." (Borba v. Thomas (1977) 70 Cal.App.3d 144, 152 (internal citation omitted).) The
speaker must intend not to honor the promise when the promise is made. (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061-1062; Yield Dynamics, Inc. v. TEA Systems Corp. (2007)
154 Cal.App.4th 547, 575; see Riverisland Cold Storage, Inc. v. Fresno-Madera Production
Credit Ass'n (2013) 55 Cal.4th 1169,1183.) The failure to perform a promise, without more, is
not enough to show it was falsely made. Promises may remain unperformed even though they
were initially made in good faith. (Tenzer v. Superscape, Inc. (1985) 39 Cal.3d 30-31
(subsequent failure to perform does not warrant inference defendant did not intend to perform
when promise made); Riverisland Cold Storage, Inc. v. FresnoMadera Production Credit Ass'n,
supra, 55 Cal.4th at p. 1183 ("the intent element of promissory fraud entails more than proof of
an unkept promise or mere failure of performance.").)
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 4 of 13
& @
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
1S‘ cause of action:
Summary adjudication is denied.
This cause of action is based on the promise to convert LCT from an S corporation to an LLC.
Longoria contends Plaintiff cannot establish that defendant made such a promise, much less that
he had no intent to keep it. Longoria further contends that he did not have the capacity to make a
promise on behalf of Roy Chin (who was also a shareholder and corporate officer at the time),
Intrepid (a former name for LCT) or LCT. Also, defendant argues that plaintiffs’ reliance on
such a promise would not be justifiable because he knew of the risks of the investment.
Alternatively, even if such a promise was made, Longoria argues that undisputed facts show that
plaintiff cannot establish that defendant did not intend to perform the alleged promise when it
was made.
In addition, Longoria argues that the statute of limitations has run on this alleged
misrepresentation. He contends that Plaintiffs' judicial admission in paragraph 37 of the Second
Amended Complaint, that Somers "was copied on a December 15, 2014 an email from Longoria
which contained a board resolution making Dr. Longoria the sole director, President, CEO, CFO
and Secretary for LC Therapeutics ...," renders Plaintiffs' first cause of action time barred.
Defendant contends Plaintiff was aware of or otherwise on notice of any breach of the alleged
promise by no later than the December 2014 email.
Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or
should suspect that her injury was caused by wrongdoing, that someone has done something
wrong to her. (See, Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103,1110-1114.) Once on notice, a
plaintiff has a duty to investigate where plaintiff actually knows of circumstances that suggest
defendant's statements may be false. (Alfaro v. Community Housing Improvement System &
Planning Ass'n, Inc. (2009) 171 Cal.App.4th 1356, 1388-1389.) Under CCP section 338(d), the
statute of limitations for fraud is three years and therefore defendant contends the statute of
limitations on the first cause of action expired in December 2017. The initial complaint in this
action was not filed until March 16, 2018.
In opposition, plaintiff first contends (and the Court agrees) that there is no fact in the separate
statement relating to the argument that Longoria had no capacity to make any promise on behalf
of the corporation. Plaintiff further contends defendant has presented no evidence in the
declaration of Longoria that he never made this specific misrepresentation. Somers further
disputes that plaintiff will not be able to prove that a misrepresentation regarding conversion
from S Corporation to an LLC was made. Somers also argues that defendant failed to present
any evidence on his lack of intent to deceive plaintiff, because he does not specifically address
this alleged misrepresentation in his declaration.
The Court finds that defendant failed to meet his burden on this cause of action because the
material facts and supporting evidence to not support the arguments made concerning lack of
intent and plaintiffs’ failure to prove the elements of this cause of action. Even if defendant had
met his burden, the Court finds that there are triable issues of material fact as to whether this
intentional misrepresentation was made, whether defendant knew it was false, whether plaintiff
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Hage bet 1S
& e
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
reasonably relied on it, and whether the damages arose from the misrepresentations rather than
the failure of the business, and whether plaintiffs damages resulted from the misrepresentations
and not just the failure of a start-up business that carries risk. (Undisputed Material Fact
(“UMF”) Nos 32, 34, 35, 38, 41, 43, 50, 51, and 53; Somers Dec. J 7, 8-12, 15, 17, 20-21, 23,
25-26, 28, 32 Exhs E-F, H-N, P; Silva Depo, 96:22-97:2, 97:14-19; Additional Material Disputed
Fact (“‘AMDF”) No. 2.) Moreover, the averred reliance by Somers, a shareholder, has to be
considered presumptively reasonable in light of the fiduciary duty owed by defendant, a
corporate officer. (See Corp. Code, § 309, subd. (a) and Edmunds v. Valley Circle Estates
(1993) 16 Cal.App.4" 1290, 1302.)
As to the statute of limitations argument, Somers states in his declaration that although he agreed
initially that LC Therapeutics remain as an S Corporation, it was only temporary until the
corporation became profitable. He states he continued to rely on Longoria’s repeated promises to
convert the LCT to an LLC. Plaintiff has attached to his declaration emails between the parties
discussing the conversion at a later date. Thus, Somers contends that he was not on notice from
the December 2014 email that Longoria never intended to convert the S corporation to an LLC.
He states he did not even discover the email until after the lawsuit was filed, and he discovered
that the document emailed to him was not signed. Moreover, he states he did not expect the
document to be changed to reflect the parties’ agreement until a later date at such time when he
made an additional investment in LCT. (Declaration of Somers, {ff 7, 13, 14, 26, 27, 28, Exhs
H, I, J, K, N.) This creates a triable issue of fact as to whether Somers knew or should have
known that his injury was caused by wrongdoing more than three years priors to the filing of this
action. (UMF No. 50, ADMF No. 2.)
2"4 cause of action:
Summary adjudication is denied.
This cause of action is based on an alleged misrepresentation made "[s]hortly before Somers
decided to make [his] initial stock purchase," on September 3, 2013—that "if and when the
company needed additional funding, Somers could purchase additional equity in the company to
whatever extent he was interested." Defendant relies on the same material facts in the separate
statement and the same arguments as the first cause of action, including that this cause of action
is time barred because plaintiff knew by December of 2014 that he would not be able to purchase
LCT stock.
The facts set forth in the separate statement for the second cause of action do not even indirectly
address this specific representation. Rather, that set only addresses the misrepresentation about
converting the corporation from an S-Corporation to an LLC and (in a limited manner) being
“equal partners.” Nor has defendant submitted evidence that establish that plaintiffs will not be
able to prove that the misrepresentation was made. As in the first cause of action, Dr. Longoria’s
declaration does not address this the truthfulness of this representation when it was made.
Instead, defendant has repeated the same facts in the separate statement as in the first cause of
action, just with different numbers.
The Court finds that defendant failed to meet his burden on this cause of action because the
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 6 of 13
i ®@
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
material facts and supporting evidence do not support the arguments made concerning lack of
intent and plaintiff's failure to prove the elements of this cause of action. Even if defendant had
met his burden, the Court finds that there are triable issues of material fact as to whether this
intentional misrepresentation was made, whether defendant knew it was false (UMF No. 61,
Somers Dec, §§ 11-12, { 17), whether plaintiff reasonably relied on it, and whether the damages
arose from the misrepresentations rather than the failure of the business, and whether plaintiffs
damages resulted from the misrepresentations and not just the failure of a start-up business that
carries risk. (UMF Nos 69, 71, 82, 87, 88, 91, 93-94, AMDF no. 3; Somers Dec. §{f 7, 9-11, 15,
18; Silva Depo, 96:22-97:2, 97:14-19.) Moreover, the averred reliance by Somers, a shareholder,
has to be considered presumptively reasonable in light of the fiduciary duty owed by defendant, a
corporate officer. (See Corp. Code, § 309, subd. (a) and Edmunds v. Valley Circle Estates
(1993) 16 Cal.App.4® 1290, 1302.)
As to the statute of limitations argument, a triable issue of fact exists as to when plaintiff knew or
should have known about the alleged falsity of this promise. (UMF Nos. 163, 164, Somers Dec,
q 13-14, 17-18.)
3" cause of action:
Summary adjudication is denied.
This cause of action is based on the alleged misrepresentation that defendant promised that
plaintiff would be equal partners with Dr. Longoria. Defendant contends this cause of action
fails for the same reasons as the first two causes of action.
Dr. Longoria’s declaration addresses this issue in paragraphs 23 and 29, where he states that he
was willing to share control of LTC, but not give it up. This asserted fact is not identified in his
separate statement and therefore the court can ignore it. Instead, defendant has cited the same
facts in the separate statement on this cause of action as in the first and second causes of action
(although with different numbers).
The Court finds that defendant failed to meet his burden on this cause of action because the
material facts and supporting evidence do not support the arguments made concerning lack of
intent and plaintiffs’ failure to prove the elements of this cause of action. Even if defendant had
met his burden, Plaintiff has raised an issue of material fact as to whether intentional
misrepresentations were made, whether plaintiff reasonably relied on them, and whether the
damages were caused by the misrepresentations listed under this cause of action and not just the
failure of a start-up business that carries risk. (UMF Nos 145, 147, 151, AMDF No.1; Somers
Dec. J 7, 9-11,13-14,18, 20-24; Exhs. D-G, O.) Moreover, the averred reliance by Somers, a
shareholder, has to be considered presumptively reasonable in light of the fiduciary duty owed
by defendant, a corporate officer. (See Corp. Code, § 309, subd. (a) and Edmunds v. Valley
Circle Estates (1993) 16 Cal.App.4® 1290, 1302.)
The same evidence creates a triable issue of fact on when plaintiff knew or should have known
about the alleged falsity of this promise, thereby triggering the limitations period. (UMF Nos.
163, 164; Somers Dec, {J 13-14, Exh. D.)
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 7 of 13
v e
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
15-3" Causes of Action — Statute of Frauds
Defendant’s separate statement contains three separate sets of facts that are labelled as an
argument that the first through third causes of action are barred by the statute of frauds. That
point is not asserted in the memorandum of points and authorities and therefore waived. In any
event, this would not bar causes of action for fraud. (Tenzer v. Superscope, Inc., supra, 39 Cal.3d
18, 29.)
Negligent misrepresentation (4"" cause of action)
Summary adjudication is denied.
Negligent misrepresentation consists of the assertion, as a fact, of something that is not true by
one who lacks reasonable grounds for believing it to be true. (Civ. Code, § 1710(2); Bily v.
Arthur Young & Co. (1992) 3 Cal.4th 370,407.) The elements of a claim for negligent
misrepresentation are: (1) a misrepresentation of fact, (2) lack of reasonable grounds, (3) a duty
to plaintiff, (4) intent to induce reliance, (5) reliance, (6) causation, and (7) harm. (Majd v. Bank
of America, N.A. (2015) 243 Cal.App.4th1293,1307; National Union Fire Ins. Co. of Pittsburgh,
Penn. v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.) Negligent
misrepresentation differs from fraud in that it lacks the element of scienter (knowledge of
falsity). (Tenet Healthsystem Desert, Inc. v. Blue Cross of Calif (2016) 245 Cal.App.4th 821,
845; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)
Defendant contends this cause of action suffers from the same defects as the promissory fraud
causes of action. He further contends Somers cannot prove that Longoria had a duty to him.
Defendant must have a duty to plaintiff to exercise reasonable care in providing the information.
(Garcia v. Sup .Ct (1990) 50 Cal.3d 728, 734; Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864.)
Plaintiff alleges the duty as follows: "because of their status as equal shareholders and because of
Dr. Longoria's various roles within the company, including as an officer and director. Dr.
Longoria owed Somers a special duty of care." Dr. Longoria breached his duty of care by
making these representations without any reasonable ground for believing these statements to be
true, thereby breaching the standard of care of a reasonably prudent person.
Somers contends that a duty is therefore owed as a matter of law. Longoria, as the sole director
of LCT, owed Somers a duty of care as a shareholder in LCT. (Corp Code, § 309, subd. (a);
Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 179.) Moreover, in November 2014, when
Longoria allegedly made his false promises to Somers during their Thanksgiving holiday in
Hawaii, Somers was a minority shareholder, owning only 20% of LCT, while Longoria was part
of the controlling shareholder group with Chin. At that time, Longoria owed Somers a duty to
exercise reasonable care in making representations to Somers. (See Sheley v. Harrop (2017) 9
Cal.App.5th 1147, 1171 ["[MJajority shareholders .. . have a fiduciary responsibility to the
minority and to the corporation to use their ability to control the corporation in a fair, just, and
equitable manner."] The court finds that defendant has not met his burden to show no duty was
owed because he concedes plaintiff was a shareholder.
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 8 of 13
w e
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
The Court finds that defendant failed to meet his burden on this cause of action for the same
reasons as in the fraud cause of action. Even if Longoria has done so, triable issues exist on
whether the representations were made, whether plaintiff reasonably relied on them, and whether
the damages arose from the misrepresentations rather than the failure of the business, and
whether plaintiffs damages resulted from the misrepresentations and not just the failure of a
start-up business that carries risk, and whether the statute of limitations bars this claim.
As with the prior three causes of action, defendant has simply repeated his initial set of
undisputed facts for a fourth time. (UMF Nos. 170-220.) The court therefore simply identifies
the corresponding facts and cited evidence from the ruling on the first three causes of action.
Breach of Fiduciary Duty (5'" cause of action)
Summary adjudication is denied.
The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary
relationship, its breach and damage caused by that breach. (Meister v. Mensinger (2014) 230
Cal.App.4th 381, 395.)
Defendant contends that a fiduciary duty does not arise unless the defendant knowingly
undertook to act on behalf of and for the benefit of another or entered into a relationship that
imposes such an undertaking as a matter of law. (Committee on Children's Television, Inc. v.
General Foods Corp. (1983) 35 Cal.3d 197, 221 (superseded by statute on other grounds as
stated in Branick v. Downey Savings & Loan Ass'n (2006) 39 Cal.4th 235, 242; City of Hope
Nat'l Med Ctr. v. Genentech, Inc. (2008) 43 Cal.4th 375, 385-386; Los Angeles Mem. Coliseum
Comm'n v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 833-834 [discussing fiduciary
relationship duty in context of claim for fraud by concealment].) Defendant contends undisputed
material facts show that Somers was merely a minority shareholder prior to Somers investing in
LCT from August 2013 through January 2015. Therefore, he contends that there is no fiduciary
duty owed. Longoria further contends that even if a fiduciary relationship existed, plaintiff can
show no damages because “Somers understood the risks of investing in a startup company and
yet he invested anyway.” Finally, he contends this claim is barred by the three year statute of
limitations in CCP section 338, based on notice provided to plaintiff in the December 2014 email
from Longoria which contained a board resolution making Dr. Longoria the sole director,
President, CEO, CFO and Secretary for LC Therapeutics.
In opposition, plaintiff explains that as a matter of law, a majority shareholder has a fiduciary
duty to a minority shareholder. Controlling shareholders in a corporation owe fiduciary duties to
minority shareholders. (Sheley v. Harrop, supra, 9 Cal.App.5th at p. 1171.) Moreover, as a
director in the corporation, Longoria owed all shareholders, including Somers, fiduciary duties of
care and loyalty. (Corp Code, § 309, subd. (a); Small v. Fritz Companies, Inc., supra, 30 Cal.4th
167, 179.) The court finds that defendant has not met his burden to show no duty was owed
because he concedes plaintiff was a shareholder.
Even if Longoria had done so, triable issues exist on whether the representations were made,
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 9 of 13
© @
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
whether plaintiff reasonably relied on them, and whether the damages arose from the
misrepresentations rather than the failure of the business, and whether plaintiff's damages
resulted from the misrepresentations and not just the failure of a start-up business that carries
risk, and whether the statute of limitations bars this claim. As with the prior four causes of
action, defendant has simply repeated his initial set of undisputed facts for a fifth time. (UMF
Nos. 226-277.) The court therefore simply identifies the corresponding identical facts and cited
evidence from the ruling on the first three causes of action.
Breach of Oral Contract (6-8'" causes of action)
Summary adjudication is denied as to these three causes of action. The alleged oral agreements
are based on the same three alleged statements that are the subject of the Promissory Fraud (1% —
3) causes of action: an agreement to convert LTC from an S corporation to an LLC, an
agreement to allow plaintiff to purchase additional equity in LTC, and to make plaintiff a
director and equal partner in LTC.
"The essential elements of a claim of breach of contract, whether express or implied, are the
contract, plaintiff's performance or excuse for nonperformance, defendant's breach, and the
resulting damages to plaintiff.” (San Mateo Union High School Dist v. County of San Mateo
(2013) 213 Cal.App.4* 418,439.) The limitations period on these claims is two years. (CCP §
339(1).
Defendant first reiterates the arguments from the first three causes of action to argue these
statements were not made, that plaintiff was not damaged, and that these claims are time-barred.
The only new claim asserted in this context is that a contract was not formed with Longoria
because Somers’ money went to LTC and not Longoria. But a consideration can be paid to a
party to contract or a third party. (1 Witkin, Summary of Cal. Law (11 ed. May 2022 Update)
Contracts, § 203.) Aside from this contention, Longoria (for the sixth, seventh, and eighth time)
repeats the long set of undisputed material facts on which he bases his arguments for each of the
prior causes of action. (UMF Nos. 282-333, 342-392, 401-447.) For the reasons stated in the
ruling on the first three causes of action, defendant has failed to meet his summary judgment
burden on each of the oral contract causes of action. Even if Longoria had done so, triable issues
exist on all of those matters and the court identifies the cited evidence from the ruling on the first
three causes of action. (UMF nos 285, 293, 295, 306, 308, 311-13, 315, 317-320, 323, 332-33
[6 cause of action]; UMF nos 345, 353, 355, 358-59, 366, 368, 371-73, 375-76, 378-80, 382,
384, 391-92 [7 cause of action]; UMF nos 404, 412, 414, 417-18, 425, 427, 430, 431-32, 434-
441, 447, 449 [8 cause of action].)
Defendant also argues that the statute of frauds bars enforcement of specified agreements unless
confirmed in some form of writing and "subscribed by the party to be charged." (Civ. Code, §
1624(a); Rest.2d Contracts §§ 110-150.) The writing must be signed by the party against whom
enforcement is sought or the party's agent— typically the defendant in an action to enforce the
contract. (Civ. Code, § 1624(a); Harper v. Goldschmidt (1909) 156 Cal. 245, 250.) Within these
strictures fall: “[a]n agreement that by its terms is not to be performed within a year from the
making thereof” and “[a] contract, promise, undertaking, or commitment to loan money or to
grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not
ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment)
Taken Under Submission on April 28, 2023 Page 10 of 13
& e
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Gordon D. Schaber Superior Court
primarily for personal, family, or household purposes, made by a person engaged in the business
of lending or arranging for the lending of money or extending credit.” (Civ. Code, § 1624, subds
(a)(1) and (a)(7).) Somers does not dispute (at least for the purposes of this motion) that the
contracts alleged in his complaint fall under those categories. (UMF nos 334, 395, 446.)
After hearing oral argument on its tentative ruling, the court allowed further briefing on whether
the statute of frauds bars the sixth-eighth causes of action. The parties filed supplemental briefs
on April 28, 2023, and the court has reviewed the points and authorities relating to the statute of
frauds. Somers objected to other portions of defendant’s submission as outside the scope of the
allowed supplemental briefing. After considering those objections and Longoria’s response, the
court will not review or consider arguments other than those relating to the statute of frauds.
A
Preview
© e NGIOIMAL UN POUVAL DOWNEY BRAND LLP FILED SSD) WILLIAM R. WARNE (Bar No. 141280) bwarne@downeybrand.com N ANNIE S. AMARAL (Bar No. 238189) JUN - 7 202 aamaral@downeybrand.com { Ww BRADLEY C. CARROLL (Bar No. 300658) bearroll@downeybrand.com By J. Jackson, D p rk -& 621 Capitol Mall, 18 Floor Sacramento, California 95814 ( ae aA Telephone: 916.444.1000 Facsimile: 916.444.2100 ND Attorneys for Plaintiff CHARLES SOMERS, individually and as trustee for the CHARLES SOMERS LIVING TRUST eo SUPERIOR COURT OF THE STATE OF CALIFORNIA oOo 10 COUNTY OF SACRAMENTO 11 2 CHARLES SOMERS, individually and as Case No. 34-2018-00229212 trustee for the CHARLES SOMERS LIVING a BRAND LLP 13 TRUST, [PROPOSED] ORDER DENYING DEFENDANT’S MOTION FOR 14 Plaintiff, SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY 15 v. ADJUDICATION DOWNEY 16 DR. JAMES LONGORIA, an individual, and | Date: April 14, 2023 BY FAX DOES 1-10, Time: 8:30 a.m. 17 Dept.: a9 Defendant. Judge: Hon. Peter K. Southworth 18 Action Filed: March 16, 2018 19 Trial Date: October 16, 2023 20 21 On April 14, 2023, Defendant Dr. James Longoria’s Motion for Summary Judgment, or in 22 the Alternative, Summary Adjudication (“Motion”) came on for hearing before this Court, Judge 23 Peter K. Southworth presiding, Department 39. Annie S. Amaral and Bradley C. Carroll of 24 Downey Brand LLP appeared for Plaintiff Charles Somers, individually and as trustee for the 25 Charles Somers Living Trust (“Somers”) and Mark E. Ellis of Ellis Law Group, LLP appeared for 26 Defendant Dr. James Longoria (“Dr. Longoria.”’). 7 /// 28 /// 1864658v1 [PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT v e At the hearing, the Court heard oral argument on the Motion. At the end of the hearing, the Court ordered the parties to filg-and serve supplemental briefs regarding the statute of frauds NO on the oral ont adtfong, bec filed and served their respective briefs on April 28, 2023. WOW Except for as set forth in the attached Exhibit A, the Court considered all briefs, papers, Fe declarations, evidence, exhibits, and all other written submissions of the parties and all arguments nN of counsel. Good cause appearing therefor: Dn IT IS HEREBY ORDERED THAT the Motion is DENIED in full as more specifically set NN forth in the Court’s May 24, 2023, Order, a true and correct copy of which is attached hereto as mea Exhibit A, and incorporated by this reference. oo IT IS SO ORDERED. CO SFellhr EES|ll KF Dated: hy NY Midge of the Superior Court BRAND LLP OO 9 WO OOF PETER K. SOUTHWORTH FSF KF APPROVED AS TO FORM: KF HA DOWNEY KF DATED: June 1, 2023 DOWNEY BRAND LLP ANY KF BH by. Le Co FHF BO HF WILLIAM R. WARNE COD ANNIE S. AMARAL NO BRADLEY C. CARROLL NO KF Attorneys for Plaintiff CHARLES SOMERS, individually and as trustee for the CHARLES NY NO SOMERS LIVING TRUST WY NO fF NHN Un NO Dn NO /// wNoO oN /// oO 1864658v1 2 [PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT © e WN WwW DATED: , 2023 ELLIS LAW GROUP, LLP By: MARK E. ELLIS —& Attorneys for Defendant DR. JAMES LONGORIA nO DD NN Oo o 10 11 12 BRAND LLP 13 14 15 DOWNEY 16 17 18 19 20 21 29 23 24 25 26 27 28 1864658v1 3 [PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT q) @ PROOF OF SERVICE Somers v. Longoria, et al. NN Case No. 34-2018-00229212 -Ww At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County of Sacramento, State of California. My business address is 621 Capitol Mall, 18th Floor, Sacramento, CA 95814. NHN On June |, 2023, I served true copies of the following document(s) described as [PROPOSED] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the interested parties in this action as follows: eo Mark E. Ellis Attorneys for Defendant, DR. JAMES Ellis Law Group LLP LONGORIA oo 1425 River Park Dr., Ste 400 10 Sacramento, CA 95815-4524 Ph: (916) 283-8820 11 Fax: (916) 283-8821 Email: mellis@ellislawgrp.com 12 BRAND LLP 13 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the 14 persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of 15 Downey Brand LLP for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of DOWNEY 16 business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in 17 the mail at Sacramento, California. 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 19 Executed on June 1, 2023, at Sacramento, California. 20 21 omy 8 Cat 22 Tammy Castro 23 24 25 26 27 28 1864658v1 4 [PROPOSED] ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT u e EXHIBIT A EXHIBIT A @ 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court Charles Somers individually and as No. 34-2018-00229212-CU-FR- trustee for the Charles Somers GDS Living Trust Plaintiff/Petitioner(s) Date: 05/24/2023 Vs. Time: 11:36 AM Dr. James Longoria et al Dept: 39 Eee EEE ON ONE Judge: PeterK. Southworth ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 The matter came before the Court on April 14, 2023 in Department 39 for oral argument. The Court heard argument on the Motion for Summary Judgment and additional briefing was ordered. The parties filed their supplemental briefs and the Court took the matter under submission on April 28, 2023. Having taken the matter under submission the Court now issues the following ruling: Defendant Dr. James Longoria (“Longoria’”’)’s Motion for Summary Judgment and, alternatively Summary Adjudication of each cause of action is denied. Rulings on Evidentiary Objections Plaintiff's Evidentiary Objections (Nos 1-10) are ruled on as follows: Somers Deposition - Sustained as to 1 (overruled as to page 86 only), Overruled as to 2. Silva Deposition and Exh. 15 (email) — Sustained as to 3 (overruled as to page 214 only). Sustained as to 4. Longoria Declaration— Overruled as to 5. Overruled as to 6, except sustained as to J 13 (lack of foundation) only. Sustained as to 7, 8. Exhibits 25 and 26 (emails) — Sustained as to 9 and 10. Defendant’s Evidentiary Objections (Nos 1-82) are ruled on as follows: Warne Declaration, Ex. C (Action by Consent): Overruled as to 1. ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Page 1 of 13 Taken Under Submission on April 28, 2023 9 « e SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court Somers Declaration (and various attached documents and emails) — Overruled as to 2-82. Background Longoria is moving for summary judgment and/or summary adjudication of claims asserted by plaintiff Charles Somers, individually and as trustee for the Charles Somers Living Trust (“Somers”). Somers alleges in his Second Amended Complaint (“SAC”) the following causes of action: promissory fraud (1* -3'), negligent misrepresentation (4"), breach of fiduciary duty (5), and breach of oral contract (6" -8"). This is a business dispute relating to LC Therapeutics, Inc. ("LCT"), an S corporation. According to plaintiff, he and defendant were friends and business associates years before they became business partners in LCT, a business founded by defendant in 2013. LCT was in the business of manufacturing medical devices invented by defendant. Somers asserts he invested in LCT in reliance on a number of promises by defendant including that if plaintiff became a shareholder, defendant would convert LCT from an S corporation to an LLC, that plaintiff could obtain more equity in LCT as consideration for additional cash infusions, and that plaintiff would have equal say in all decision-making. Plaintiff alleges these representations were knowingly false at the time they were made, and that they induced him into making the cash contributions. Plaintiff alleges he discovered the misrepresentations when defendant reneged on his promises after plaintiff refused to contribute additional funds in 2018. Defendant’s motion is made on the grounds that (1) undisputed material facts establish that plaintiff is unable to prove one or more of the prima facie elements of each of the 8 causes of action asserted, as well as the punitive damages claim in their operative SAC, and/or (2) each claim is subject to defenses, including, but not limited to, the defenses of the statute of limitations, statute of frauds, the individual plaintiff's lack of standing, and lack of the proper party defendant. As a threshold matter, Plaintiff argues (and the Court agrees) that the Separate Statement does not comply with the Code of Civil Procedure (“CCP”), section 437c(b)(1), in that it does not plainly and concisely set forth all material facts as to each cause of action that are undisputed. The 511 facts set forth as undisputed facts are repetitive for each cause of action and fail to focus on the specific elements and defenses to each cause of action. Many of the facts are seemingly irrelevant as they are not referred to in the points and authorities and appear to have nothing to do with the arguments made therein. Many facts set forth as material are instead “attributive facts” that are appropriately stricken from the separate statement. Defendant repeatedly frames facts as "admissions"," "understandings," or "thoughts" from various depositions of other parties. Courts have "emphatically condemn[ed]" this practice and those facts are properly not considered. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106.) These defects render the separate statement unduly unwieldy and difficult to navigate. Although CCP section 437c(b)(1) states that the court has discretion to deny the motion for failure to comply with this section, the Court is reaching the merits of the motion. Authority ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 2 of 13 q @ SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court The Court must grant a motion for summary judgment if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (CCP § 437c(c); Mann v. Cracchiolo (1985) 38 Cal. 3d 18, 35.) Section 437c(c) imposes an affirmative duty on a Court to grant summary judgment in appropriate case. (Preach v. Moister Rainbow (1993) 12 Cal. App. 4th 1441, 1450.) The Court must decide if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to determine it. (Pittelman v. Pearce (1992) 6 Cal. App. 4th 1436, 1441; see also Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal. App. 4 394, 404). Summary judgment is properly granted only if the moving party's evidence establishes that there is no issue of material fact to be tried. (Lipson v. Superior Court (1982) 31 Cal. 3d 362, 374; Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 830.) The court may not grant summary judgment when any material factual issue is disputed. In evaluating a motion for summary judgment or summary adjudication the court engages in a three-step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (/-PI 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. An issue that is "within the general area of issues framed by the pleadings" is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an un-pleaded issue in ruling on motion for summary judgment or adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541). The papers filed in response to a defendant's motion for summary judgment 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.) Second, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781.) Rather, to meet its burden, the defendant is required only to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855.) Finally, once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (CCP 437c(p); see Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.) “There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co, supra, 25 Cal.4th 826, 845.) In ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 3 of 13 u e SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court 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. (/d. at p. 843.) The separate statement and the opposing separate statement are intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion. Ifa triable issue is raised as to any of the facts in a separate statement, the motion must be denied. A party moving for summary judgment concedes the materiality of each fact enumerated in its separate statement and, as a consequence, cannot argue that the motion should be granted because one or more of these facts are not truly material. (Nazir v United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) As the Nazir court noted, the facts enumerated in a moving separate statement have a due- process dimension in that they define for the opposing party the facts which, if disputed with admissible evidence, result in the motion being denied. (Jbid. [citation omitted].) Promissory fraud Defendant contends plaintiff cannot prevail on the first three causes of action for fraud because defendant did not make any actionable misrepresentations, and that plaintiff will not be able to show reasonable reliance or damages. Defendant further contends the three fraud causes of action are barred by the statute of limitations. Promissory fraud is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4 951, 973-974 (internal citations omitted)). As a subspecies of fraud and deceit, promissory fraud requires proof of "(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e]." (Gruber v. Gruber (2020) 48 Cal.App.Sth 529, 540, citing, Engalla, supra, 15 Cal.4" at p. 973.) "Predictions as to future events, or statements as to future action by some third party, are deemed opinions, and are not actionable fraud." (Borba v. Thomas (1977) 70 Cal.App.3d 144, 152 (internal citation omitted).) The speaker must intend not to honor the promise when the promise is made. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061-1062; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 575; see Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass'n (2013) 55 Cal.4th 1169,1183.) The failure to perform a promise, without more, is not enough to show it was falsely made. Promises may remain unperformed even though they were initially made in good faith. (Tenzer v. Superscape, Inc. (1985) 39 Cal.3d 30-31 (subsequent failure to perform does not warrant inference defendant did not intend to perform when promise made); Riverisland Cold Storage, Inc. v. FresnoMadera Production Credit Ass'n, supra, 55 Cal.4th at p. 1183 ("the intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance.").) ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 4 of 13 & @ SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court 1S‘ cause of action: Summary adjudication is denied. This cause of action is based on the promise to convert LCT from an S corporation to an LLC. Longoria contends Plaintiff cannot establish that defendant made such a promise, much less that he had no intent to keep it. Longoria further contends that he did not have the capacity to make a promise on behalf of Roy Chin (who was also a shareholder and corporate officer at the time), Intrepid (a former name for LCT) or LCT. Also, defendant argues that plaintiffs’ reliance on such a promise would not be justifiable because he knew of the risks of the investment. Alternatively, even if such a promise was made, Longoria argues that undisputed facts show that plaintiff cannot establish that defendant did not intend to perform the alleged promise when it was made. In addition, Longoria argues that the statute of limitations has run on this alleged misrepresentation. He contends that Plaintiffs' judicial admission in paragraph 37 of the Second Amended Complaint, that Somers "was copied on a December 15, 2014 an email from Longoria which contained a board resolution making Dr. Longoria the sole director, President, CEO, CFO and Secretary for LC Therapeutics ...," renders Plaintiffs' first cause of action time barred. Defendant contends Plaintiff was aware of or otherwise on notice of any breach of the alleged promise by no later than the December 2014 email. Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. (See, Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103,1110-1114.) Once on notice, a plaintiff has a duty to investigate where plaintiff actually knows of circumstances that suggest defendant's statements may be false. (Alfaro v. Community Housing Improvement System & Planning Ass'n, Inc. (2009) 171 Cal.App.4th 1356, 1388-1389.) Under CCP section 338(d), the statute of limitations for fraud is three years and therefore defendant contends the statute of limitations on the first cause of action expired in December 2017. The initial complaint in this action was not filed until March 16, 2018. In opposition, plaintiff first contends (and the Court agrees) that there is no fact in the separate statement relating to the argument that Longoria had no capacity to make any promise on behalf of the corporation. Plaintiff further contends defendant has presented no evidence in the declaration of Longoria that he never made this specific misrepresentation. Somers further disputes that plaintiff will not be able to prove that a misrepresentation regarding conversion from S Corporation to an LLC was made. Somers also argues that defendant failed to present any evidence on his lack of intent to deceive plaintiff, because he does not specifically address this alleged misrepresentation in his declaration. The Court finds that defendant failed to meet his burden on this cause of action because the material facts and supporting evidence to not support the arguments made concerning lack of intent and plaintiffs’ failure to prove the elements of this cause of action. Even if defendant had met his burden, the Court finds that there are triable issues of material fact as to whether this intentional misrepresentation was made, whether defendant knew it was false, whether plaintiff ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Hage bet 1S & e SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court reasonably relied on it, and whether the damages arose from the misrepresentations rather than the failure of the business, and whether plaintiffs damages resulted from the misrepresentations and not just the failure of a start-up business that carries risk. (Undisputed Material Fact (“UMF”) Nos 32, 34, 35, 38, 41, 43, 50, 51, and 53; Somers Dec. J 7, 8-12, 15, 17, 20-21, 23, 25-26, 28, 32 Exhs E-F, H-N, P; Silva Depo, 96:22-97:2, 97:14-19; Additional Material Disputed Fact (“‘AMDF”) No. 2.) Moreover, the averred reliance by Somers, a shareholder, has to be considered presumptively reasonable in light of the fiduciary duty owed by defendant, a corporate officer. (See Corp. Code, § 309, subd. (a) and Edmunds v. Valley Circle Estates (1993) 16 Cal.App.4" 1290, 1302.) As to the statute of limitations argument, Somers states in his declaration that although he agreed initially that LC Therapeutics remain as an S Corporation, it was only temporary until the corporation became profitable. He states he continued to rely on Longoria’s repeated promises to convert the LCT to an LLC. Plaintiff has attached to his declaration emails between the parties discussing the conversion at a later date. Thus, Somers contends that he was not on notice from the December 2014 email that Longoria never intended to convert the S corporation to an LLC. He states he did not even discover the email until after the lawsuit was filed, and he discovered that the document emailed to him was not signed. Moreover, he states he did not expect the document to be changed to reflect the parties’ agreement until a later date at such time when he made an additional investment in LCT. (Declaration of Somers, {ff 7, 13, 14, 26, 27, 28, Exhs H, I, J, K, N.) This creates a triable issue of fact as to whether Somers knew or should have known that his injury was caused by wrongdoing more than three years priors to the filing of this action. (UMF No. 50, ADMF No. 2.) 2"4 cause of action: Summary adjudication is denied. This cause of action is based on an alleged misrepresentation made "[s]hortly before Somers decided to make [his] initial stock purchase," on September 3, 2013—that "if and when the company needed additional funding, Somers could purchase additional equity in the company to whatever extent he was interested." Defendant relies on the same material facts in the separate statement and the same arguments as the first cause of action, including that this cause of action is time barred because plaintiff knew by December of 2014 that he would not be able to purchase LCT stock. The facts set forth in the separate statement for the second cause of action do not even indirectly address this specific representation. Rather, that set only addresses the misrepresentation about converting the corporation from an S-Corporation to an LLC and (in a limited manner) being “equal partners.” Nor has defendant submitted evidence that establish that plaintiffs will not be able to prove that the misrepresentation was made. As in the first cause of action, Dr. Longoria’s declaration does not address this the truthfulness of this representation when it was made. Instead, defendant has repeated the same facts in the separate statement as in the first cause of action, just with different numbers. The Court finds that defendant failed to meet his burden on this cause of action because the ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 6 of 13 i ®@ SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court material facts and supporting evidence do not support the arguments made concerning lack of intent and plaintiff's failure to prove the elements of this cause of action. Even if defendant had met his burden, the Court finds that there are triable issues of material fact as to whether this intentional misrepresentation was made, whether defendant knew it was false (UMF No. 61, Somers Dec, §§ 11-12, { 17), whether plaintiff reasonably relied on it, and whether the damages arose from the misrepresentations rather than the failure of the business, and whether plaintiffs damages resulted from the misrepresentations and not just the failure of a start-up business that carries risk. (UMF Nos 69, 71, 82, 87, 88, 91, 93-94, AMDF no. 3; Somers Dec. §{f 7, 9-11, 15, 18; Silva Depo, 96:22-97:2, 97:14-19.) Moreover, the averred reliance by Somers, a shareholder, has to be considered presumptively reasonable in light of the fiduciary duty owed by defendant, a corporate officer. (See Corp. Code, § 309, subd. (a) and Edmunds v. Valley Circle Estates (1993) 16 Cal.App.4® 1290, 1302.) As to the statute of limitations argument, a triable issue of fact exists as to when plaintiff knew or should have known about the alleged falsity of this promise. (UMF Nos. 163, 164, Somers Dec, q 13-14, 17-18.) 3" cause of action: Summary adjudication is denied. This cause of action is based on the alleged misrepresentation that defendant promised that plaintiff would be equal partners with Dr. Longoria. Defendant contends this cause of action fails for the same reasons as the first two causes of action. Dr. Longoria’s declaration addresses this issue in paragraphs 23 and 29, where he states that he was willing to share control of LTC, but not give it up. This asserted fact is not identified in his separate statement and therefore the court can ignore it. Instead, defendant has cited the same facts in the separate statement on this cause of action as in the first and second causes of action (although with different numbers). The Court finds that defendant failed to meet his burden on this cause of action because the material facts and supporting evidence do not support the arguments made concerning lack of intent and plaintiffs’ failure to prove the elements of this cause of action. Even if defendant had met his burden, Plaintiff has raised an issue of material fact as to whether intentional misrepresentations were made, whether plaintiff reasonably relied on them, and whether the damages were caused by the misrepresentations listed under this cause of action and not just the failure of a start-up business that carries risk. (UMF Nos 145, 147, 151, AMDF No.1; Somers Dec. J 7, 9-11,13-14,18, 20-24; Exhs. D-G, O.) Moreover, the averred reliance by Somers, a shareholder, has to be considered presumptively reasonable in light of the fiduciary duty owed by defendant, a corporate officer. (See Corp. Code, § 309, subd. (a) and Edmunds v. Valley Circle Estates (1993) 16 Cal.App.4® 1290, 1302.) The same evidence creates a triable issue of fact on when plaintiff knew or should have known about the alleged falsity of this promise, thereby triggering the limitations period. (UMF Nos. 163, 164; Somers Dec, {J 13-14, Exh. D.) ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 7 of 13 v e SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court 15-3" Causes of Action — Statute of Frauds Defendant’s separate statement contains three separate sets of facts that are labelled as an argument that the first through third causes of action are barred by the statute of frauds. That point is not asserted in the memorandum of points and authorities and therefore waived. In any event, this would not bar causes of action for fraud. (Tenzer v. Superscope, Inc., supra, 39 Cal.3d 18, 29.) Negligent misrepresentation (4"" cause of action) Summary adjudication is denied. Negligent misrepresentation consists of the assertion, as a fact, of something that is not true by one who lacks reasonable grounds for believing it to be true. (Civ. Code, § 1710(2); Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,407.) The elements of a claim for negligent misrepresentation are: (1) a misrepresentation of fact, (2) lack of reasonable grounds, (3) a duty to plaintiff, (4) intent to induce reliance, (5) reliance, (6) causation, and (7) harm. (Majd v. Bank of America, N.A. (2015) 243 Cal.App.4th1293,1307; National Union Fire Ins. Co. of Pittsburgh, Penn. v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.) Negligent misrepresentation differs from fraud in that it lacks the element of scienter (knowledge of falsity). (Tenet Healthsystem Desert, Inc. v. Blue Cross of Calif (2016) 245 Cal.App.4th 821, 845; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Defendant contends this cause of action suffers from the same defects as the promissory fraud causes of action. He further contends Somers cannot prove that Longoria had a duty to him. Defendant must have a duty to plaintiff to exercise reasonable care in providing the information. (Garcia v. Sup .Ct (1990) 50 Cal.3d 728, 734; Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864.) Plaintiff alleges the duty as follows: "because of their status as equal shareholders and because of Dr. Longoria's various roles within the company, including as an officer and director. Dr. Longoria owed Somers a special duty of care." Dr. Longoria breached his duty of care by making these representations without any reasonable ground for believing these statements to be true, thereby breaching the standard of care of a reasonably prudent person. Somers contends that a duty is therefore owed as a matter of law. Longoria, as the sole director of LCT, owed Somers a duty of care as a shareholder in LCT. (Corp Code, § 309, subd. (a); Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 179.) Moreover, in November 2014, when Longoria allegedly made his false promises to Somers during their Thanksgiving holiday in Hawaii, Somers was a minority shareholder, owning only 20% of LCT, while Longoria was part of the controlling shareholder group with Chin. At that time, Longoria owed Somers a duty to exercise reasonable care in making representations to Somers. (See Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1171 ["[MJajority shareholders .. . have a fiduciary responsibility to the minority and to the corporation to use their ability to control the corporation in a fair, just, and equitable manner."] The court finds that defendant has not met his burden to show no duty was owed because he concedes plaintiff was a shareholder. ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 8 of 13 w e SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court The Court finds that defendant failed to meet his burden on this cause of action for the same reasons as in the fraud cause of action. Even if Longoria has done so, triable issues exist on whether the representations were made, whether plaintiff reasonably relied on them, and whether the damages arose from the misrepresentations rather than the failure of the business, and whether plaintiffs damages resulted from the misrepresentations and not just the failure of a start-up business that carries risk, and whether the statute of limitations bars this claim. As with the prior three causes of action, defendant has simply repeated his initial set of undisputed facts for a fourth time. (UMF Nos. 170-220.) The court therefore simply identifies the corresponding facts and cited evidence from the ruling on the first three causes of action. Breach of Fiduciary Duty (5'" cause of action) Summary adjudication is denied. The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach and damage caused by that breach. (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395.) Defendant contends that a fiduciary duty does not arise unless the defendant knowingly undertook to act on behalf of and for the benefit of another or entered into a relationship that imposes such an undertaking as a matter of law. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221 (superseded by statute on other grounds as stated in Branick v. Downey Savings & Loan Ass'n (2006) 39 Cal.4th 235, 242; City of Hope Nat'l Med Ctr. v. Genentech, Inc. (2008) 43 Cal.4th 375, 385-386; Los Angeles Mem. Coliseum Comm'n v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 833-834 [discussing fiduciary relationship duty in context of claim for fraud by concealment].) Defendant contends undisputed material facts show that Somers was merely a minority shareholder prior to Somers investing in LCT from August 2013 through January 2015. Therefore, he contends that there is no fiduciary duty owed. Longoria further contends that even if a fiduciary relationship existed, plaintiff can show no damages because “Somers understood the risks of investing in a startup company and yet he invested anyway.” Finally, he contends this claim is barred by the three year statute of limitations in CCP section 338, based on notice provided to plaintiff in the December 2014 email from Longoria which contained a board resolution making Dr. Longoria the sole director, President, CEO, CFO and Secretary for LC Therapeutics. In opposition, plaintiff explains that as a matter of law, a majority shareholder has a fiduciary duty to a minority shareholder. Controlling shareholders in a corporation owe fiduciary duties to minority shareholders. (Sheley v. Harrop, supra, 9 Cal.App.5th at p. 1171.) Moreover, as a director in the corporation, Longoria owed all shareholders, including Somers, fiduciary duties of care and loyalty. (Corp Code, § 309, subd. (a); Small v. Fritz Companies, Inc., supra, 30 Cal.4th 167, 179.) The court finds that defendant has not met his burden to show no duty was owed because he concedes plaintiff was a shareholder. Even if Longoria had done so, triable issues exist on whether the representations were made, ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 9 of 13 © @ SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court whether plaintiff reasonably relied on them, and whether the damages arose from the misrepresentations rather than the failure of the business, and whether plaintiff's damages resulted from the misrepresentations and not just the failure of a start-up business that carries risk, and whether the statute of limitations bars this claim. As with the prior four causes of action, defendant has simply repeated his initial set of undisputed facts for a fifth time. (UMF Nos. 226-277.) The court therefore simply identifies the corresponding identical facts and cited evidence from the ruling on the first three causes of action. Breach of Oral Contract (6-8'" causes of action) Summary adjudication is denied as to these three causes of action. The alleged oral agreements are based on the same three alleged statements that are the subject of the Promissory Fraud (1% — 3) causes of action: an agreement to convert LTC from an S corporation to an LLC, an agreement to allow plaintiff to purchase additional equity in LTC, and to make plaintiff a director and equal partner in LTC. "The essential elements of a claim of breach of contract, whether express or implied, are the contract, plaintiff's performance or excuse for nonperformance, defendant's breach, and the resulting damages to plaintiff.” (San Mateo Union High School Dist v. County of San Mateo (2013) 213 Cal.App.4* 418,439.) The limitations period on these claims is two years. (CCP § 339(1). Defendant first reiterates the arguments from the first three causes of action to argue these statements were not made, that plaintiff was not damaged, and that these claims are time-barred. The only new claim asserted in this context is that a contract was not formed with Longoria because Somers’ money went to LTC and not Longoria. But a consideration can be paid to a party to contract or a third party. (1 Witkin, Summary of Cal. Law (11 ed. May 2022 Update) Contracts, § 203.) Aside from this contention, Longoria (for the sixth, seventh, and eighth time) repeats the long set of undisputed material facts on which he bases his arguments for each of the prior causes of action. (UMF Nos. 282-333, 342-392, 401-447.) For the reasons stated in the ruling on the first three causes of action, defendant has failed to meet his summary judgment burden on each of the oral contract causes of action. Even if Longoria had done so, triable issues exist on all of those matters and the court identifies the cited evidence from the ruling on the first three causes of action. (UMF nos 285, 293, 295, 306, 308, 311-13, 315, 317-320, 323, 332-33 [6 cause of action]; UMF nos 345, 353, 355, 358-59, 366, 368, 371-73, 375-76, 378-80, 382, 384, 391-92 [7 cause of action]; UMF nos 404, 412, 414, 417-18, 425, 427, 430, 431-32, 434- 441, 447, 449 [8 cause of action].) Defendant also argues that the statute of frauds bars enforcement of specified agreements unless confirmed in some form of writing and "subscribed by the party to be charged." (Civ. Code, § 1624(a); Rest.2d Contracts §§ 110-150.) The writing must be signed by the party against whom enforcement is sought or the party's agent— typically the defendant in an action to enforce the contract. (Civ. Code, § 1624(a); Harper v. Goldschmidt (1909) 156 Cal. 245, 250.) Within these strictures fall: “[a]n agreement that by its terms is not to be performed within a year from the making thereof” and “[a] contract, promise, undertaking, or commitment to loan money or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not ORDER re: Ruling on Submitted Matter (Motion for Summary Judgment) Taken Under Submission on April 28, 2023 Page 10 of 13 & e SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Gordon D. Schaber Superior Court primarily for personal, family, or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit.” (Civ. Code, § 1624, subds (a)(1) and (a)(7).) Somers does not dispute (at least for the purposes of this motion) that the contracts alleged in his complaint fall under those categories. (UMF nos 334, 395, 446.) After hearing oral argument on its tentative ruling, the court allowed further briefing on whether the statute of frauds bars the sixth-eighth causes of action. The parties filed supplemental briefs on April 28, 2023, and the court has reviewed the points and authorities relating to the statute of frauds. Somers objected to other portions of defendant’s submission as outside the scope of the allowed supplemental briefing. After considering those objections and Longoria’s response, the court will not review or consider arguments other than those relating to the statute of frauds. A