1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 NICHOLAS A VENA, Case No.: 3:22-cv-0437-W-BLM
14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. SUMMARY JUDGMENT MOTION [DOC. 83] AND GRANTING 16 MOORE, SCHULMAN & MOORE, DEFENDANTS’ SUMMARY APC, et al. 17 JUDGMENT MOTION [DOC. 86] Defendants. 18 19 20 Pending before the Court are the parties’ cross-motions for summary 21 judgment/adjudication. The Court decides the matters on the papers submitted and 22 without oral argument. Civ. L.R. 7.1(d.1). For the reasons that follow, the Court DENIES 23 Plaintiff’s motion for summary adjudication [Doc. 83] and GRANTS Defendants’ 24 motion for summary judgment [Doc. 86]. 25 // 26 // 27 // 28 1 I. BACKGROUND 2 This lawsuit arises out of an underlying state court marital-dissolution proceeding 3 between Plaintiff Nicholas A. Vena and Christine Vena before a privately compensated 4 temporary judge, Commissioner Jeannie Lowe (Ret.). During the child-custody trial, 5 attorneys from the law firm representing Christine, Defendant Moore, Schulman & 6 Moore, appeared in mediations before Commissioner Lowe and neither the 7 Commissioner nor Defendants disclosed those appearances to Nicholas. 8 At the conclusion of the Vena trial, Commissioner Lowe entered orders for 9 financial support and child custody that Nicholas believed were unjust. He then requested 10 and obtained new disclosures for Commissioner Lowe, which revealed the other cases 11 she mediated with MSM attorneys. Nicholas successfully moved to disqualify 12 Commissioner Lowe and her orders were vacated. The subsequent orders entered by the 13 superior court required Nicholas to pay more in child and spousal support, and reduced 14 his parenting time with most of his children. 15 Meanwhile, Nicholas filed this lawsuit against MSM and the firm’s attorneys who 16 represented Christine in the Vena matter. Nicholas asserts causes of action for violation 17 of his due-process rights under 42 U.S.C. § 1983, negligence, wrongful conduct, and 18 intentional interference with contract. (See FAC [Doc. 40].) The parties have now filed 19 cross motion for summary judgment/adjudication. 20 21 A. The marital dissolution proceeding. 22 On November 18, 2019, Christine filed a petition for legal separation against 23 Nicholas in the San Diego Superior Court, North County Family Division. (FAC [Doc. 24 40] at ¶ 10.) Christine was represented by Defendant Julie Westerman, a partner at MSM. 25 (Id.) “In addition to legal separation, the case involved substantial contested issues, 26 including child custody and visitation; child support; spousal support; property 27 characterization; valuation, and division; and attorney’s fees and costs.” (Id.) 28 1 On December 5, 2019, Judge James Mangione entered a stipulation and order 2 giving Christine primary physical custody of the children. (Defs’ NOL [Doc. 86-6], Ex. 3 1.) The order provided Nicholas with parenting time with the five older children on 4 alternate weekends and every Tuesday after school until Wednesday morning. (Id.) It also 5 provided him parenting time with the younger twin boys, for three hours every Tuesday 6 and Thursday and for seven hours on alternating Saturdays. (Id.) 7 On January 28, 2020, Nicholas moved ex parte for an emergency change to the 8 custody orders, seeking more parenting time. (Defs’ NOL, Ex. 2.) Judge Wood denied the 9 request. (Id.) 10 On March 13, 2020, Judge Wood entered interim custody and visitation orders. 11 (Defs’ NOL, Ex. 3; Westerman Decl. [Doc. 86-3] at ¶ 3.) The orders provided Nicholas 12 time with the four middle children every Tuesday after school to Wednesday morning, 13 alternating weekends, and alternating Mondays; with the oldest child at her discretion; 14 and with the twins for three hours Tuesdays and Thursdays and seven hours on 15 alternating Saturdays. (Id.) 16 On August 17, 2020, Nicholas again applied ex parte for a change to the custody 17 and visitation orders, which Judge Wood denied. (Defs’ NOL, Ex. 4.) 18 In August 2020, Westerman reduced her workload on the Vena matter in 19 preparation for maternity leave. (Westerman Decl. at ¶ 4.) MSM attorney Amy Feldmann 20 became more involved in the case. (Id.) At some point, MSM attorney David Schulman 21 also became involved in the case. (Schulman Decl. [Doc. 86-4] at ¶ 3.) Westerman began 22 maternity leave in late August. (Westerman Decl. at ¶5.) 23 24 B. The parties decide to engage a private judge. 25 The Covid-19 pandemic delayed the child-custody trial. As a result, the parties 26 discussed retaining a private judge. 27 On August 13, 2020, Nicholas’ attorney, Tara Yelman and Feldman exchanged 28 emails about engaging a private judge. (Defs’ NOL, Ex. 5.) During the exchange, Yelman 1 acknowledged there were only about four private judges with enough experience to 2 preside over the matter, including Commissioner Lowe: 3 The pool is finite, unless there was someone else you were thinking of, there are only about four Judges there with a lot of family law experience Howatt 4 Lowe Denton Goldsmith. Then you have Murphy and Lewis who don’t have 5 as much but are experienced in family law. [¶] Have her look them up and tell me which 2 or 3 she is comfortable with[.] 6 7 (Defs’ NOL, Ex. 5 at 25 of 434.1) 8 On August 18, 2020, Feldmann sent Yelman a letter stating that Christine was 9 willing to use either Commissioner Lowe or Judge Joan Lewis (Ret.). (Defs’ NOL, Ex. 7.) 10 On September 1, Yelman emailed Feldman to confirm that “[y]our client agreed to go 11 forward and as discussed we chose one of the two she offered.” (Defs’ NOL, Ex. 8 at 37 12 of 434.) A few minutes later, Feldman responded: “Correct – I think we are all in 13 agreement on utilizing Comm. Lowe.” (Id. at 36 of 434.) 14 On October 6, 2020, the Stipulation and Order for Appointment of Privately 15 Compensated Temporary Judge (the “Stipulation”) was filed. (Pl’s Exhibits [Doc. 83-5], 16 Ex. 4 at 82 of 568.) The Stipulation includes Commissioner Lowe’s signature for the 17 Oath of Office. (Id. at 84 of 568.) The last sentence of the Oath certified that she is aware 18 and will comply “with the applicable provision of Canon 6 of the Code of Judicial Ethics 19 and the California Rules of Court.” (Id.) The Stipulation also provided that either party 20 had the right to petition to terminate without cause or file a motion to withdraw the 21 Stipulation for good cause. (Id. at 88 of 568.) 22 23 C. Commissioner Lowe’s disclosures before the Vena matter began. 24 On September 18, 2020, Commissioner Lowe signed the Disclosure Checklist. 25 (Pl’s Exhibits, Ex. 3 at 44–48 of 568.) The document disclosed that within the past 24 26
27 1 Page references for the parties’ exhibits are to the CM/ECF file stamp at the top of the page. 28 1 months Commissioner Lowe had a “significant professional relationship with a party, 2 attorney, or law firm in the instant case. . . .” (Id. at 44 of 568.) Nicholas understood that 3 Commissioner Lowe was referring to her “significant professional relationship” with 4 MSM, and not his attorneys. (Defs’ NOL, Ex. 14 at 94 of 434.) The Disclosure Checklist 5 also stated that Commissioner Lowe will, 6 entertain offers of employment or new professional relationships in any capacity other than as a lawyer, expert witness, or consultant from a party, 7 lawyer in the hearing, or lawyer or law firm that is currently associated in 8 the private practice of law with a lawyer in the hearing while the hearing is pending, including offers to serve as a dispute resolution neutral in another 9 case[.] 10 (Pl’s Exhibit, Ex. 3 at 46 of 568.) Immediately below this disclosure, the document also 11 stated: 12 The Master will not inform the parties if he or she subsequently receives 13 an offer or new matter while the matter was pending. 14 (Id., emphasis in original.) Nicholas admitted he saw these disclosures and nevertheless 15 consented to Commissioner Lowe’s appointment. (Defs’ NOL, Ex. 14 at 95 of 434.) 16
17 D. The Vena custody trial. 18 The custody trial began in March 2021 and lasted 15 days over the course of 19 approximately three months. (See Jt. Statement [Doc. 91] at ¶ 19.) During the trial, there 20 was unfavorable testimony regarding Nicholas’ anger issues. For example, Christine 21 testified that when Nicholas was angry, he would take nursing babies away from her and 22 leave. (Defs’ NOL, Ex. 25 at 176 of 434.) During one argument, Christine testified that 23 she went into a bathroom and locked the door to get away from Nicholas. (Id. at 177 of 24 434.) He punched a hole in the bathroom door. (Id.) Christine also testified that Nicholas 25 would hit and kick the family dogs in front of the children, and once kicked a dog so hard 26 that he broke its leg. (Id. at 178 of 434.) 27 28 1 In addition to Christine’s testimony, the children’s nanny testified that Nicholas 2 almost never spent time with the children, did not help homeschool them and never 3 changed diapers. (Defs’ NOL, Ex. 27 at 184–186 of 434.) While she characterized 4 Christine as a “wonderful” mother, she stated Nicholas was an “absent” father. (Id. at 187 5 of 434.) A family friend testified that Nicholas made “concerning” statements about 6 hitting one of his children while wearing rings, causing the child to bleed, and hurting the 7 family dog. (Defs’ NOL, Ex. 28 at 191–192 of 434.) And a therapist testified that she 8 stopped the girls’ therapy because of the pushback she received from Nicholas and his 9 attorney Yelman. (Defs’ NOL, Ex. 29 at 202 of 434.) 10 On June 21, 2021, Commissioner Lowe issued an oral decision regarding child 11 custody that was consistent with Judge Mangione’s and Judge Woods’ earlier orders. 12 Commissioner Lowe gave Christine primary physical custody over all the minor children. 13 (Defs’ NOL, Ex. 30 at 224 of 434.) She granted Nicholas parenting time overnights on 14 alternate weekends and overnights Tuesday afternoon until Wednesday morning for the 15 four middle children. (Id. at 224–225 of 434.) Regarding the twins, Nicholas had 16 parenting time overnight on Tuesdays, six hours on Thursdays, and from noon Saturday 17 until noon Sunday on alternate weekends. (Id. at 225–226 of 434.) 18 On July 27, 2021, Commissioner Lowe issued an order setting child support and 19 temporary spousal support at the guideline amounts. (Defs’ NOL, Ex. 32 at 271–272 of 20 434.) For the period January through June 2021, child support for the six children was set 21 at $3,528 per month and temporary spousal support at $993 for a total of $4,521 per 22 month. (Id.) Commencing on July 1, 2021, child support increased to $3,775 per month 23 and temporary spousal support increased to $1,055 for a total of $4830 per month. (Defs’ 24 NOL, Ex. 32 at 272 of 343; Westerman Decl. at ¶ 19.) These amounts reflected 25 Commissioner Lowe’s agreement with Nicholas’ request to consider the fact that he was 26 paying $5,000 per month in rent while Christine’s housing costs totaled $1,325 per 27 month. (Defs’ NOL, Ex. 32 at 271 of 343.) Commissioner Lowe also set arrears 28 retroactively at $24,943 for the period January 1 to July 31, 2021. (Id. at 272 of 343.) 1 Finally, on September 22, 2021, Commissioner Lowe granted Christine’s ex parte 2 application to place the proceeds from the sale of P2P Holdco, Inc. stock/units to be held 3 in trust by MSM. (Westerman Decl. at ¶ 20; Defs’ NOL, Ex. 33 at 279 of 343.) 4 5 E. During the Vena trial, MSM retained Commissioner Lowe as a 6 mediator in other matters. 7 Two days after the trial began, David Schulman appeared at a mediation in front of 8 Commissioner Lowe in another case. (Jt. Statement at No. 25.) Schulman’s undisputed 9 testimony is that his opposing counsel, Dan Herbert—who also represented Nicholas 10 from October 2021 until about July 2022 (Yelman Decl. [Doc. 103-3] at ¶ 2)—proposed 11 Commissioner Lowe. (Schulman Decl. at ¶ 6.) Schulman also appeared before 12 Commissioner Lowe in mediations on other cases on May 3 and May 19, 2021. (Jt. 13 Statement at No. 24.) Schulman’s undisputed testimony is that in both cases, counsel for 14 the opposing side proposed Commissioner Lowe. (Schulman Decl. ¶¶ 7, 8.) 15 In addition to Schulman, two other MSM attorneys appeared in mediations with 16 Commissioner Lowe during the Vena trial. (Jt. Statement at Nos. 24, 26.) Attorney Erik 17 Moore appeared in three mediations and attorney Sara Bear in one. (Id.) Neither Moore 18 nor Bear were involved in the Vena matter. (Westerman Decl. at ¶¶ 21, 22.) 19 None of the matters in which MSM attorneys appeared before Commissioner Lowe 20 during the Vena trial were disclosed to Nicholas. 21 22 F. After the custody trial, Nicholas demands updated disclosures. 23 On September 2, 2021, Yelman requested updated disclosures from Commissioner 24 Lowe. (Defs’ NOL, Ex. 35.) The updated disclosures identified eight previously 25 undisclosed mediations that MSM attorneys had with Commissioner Lowe. (Pl’s 26 Exhibits, Ex. 23 at 184 of 568.) 27 On September 22, 2021, Nicholas moved to disqualify Commissioner Lowe based 28 on (1) his inability to continue paying for the private judging and (2) for cause due to the 1 perception that Commissioner Lowe was not impartial. (Defs’ NOL, Ex. 38 at p. 310 of 2 434.) With respect to the “for cause” ground, Nicholas’ argument was based on Jolie v. 3 Superior Court of Los Angeles County, 66 Cal.App.5th 1025 (2021), which was decided 4 after the Vena trial concluded. (Id. at p. 312–314 of 434.) Additionally, in citing 5 Commissioner Lowe’s failure to disclose the new matters as the basis for disqualification, 6 Nicholas contended that he “never agreed to waive his right to disclosures under the Code 7 of Judicial Ethics canon 6. . . .” (Id. at 311 of 434.) There is no dispute that Nicholas and 8 his counsel were aware of Commissioner Lowe’s disclosure on September 18, 2020 that 9 she would not disclose any subsequent engagements. (Pl’s Exhibit, Ex. 3 at 46 of 568; 10 Defs’ NOL, Ex. 14 at 95 of 434.) 11 On September 28, 2021, Commissioner Lowe filed a verified answer asserting she 12 was not biased against Nicholas but agreeing to the recusal. (Defs’ NOL, Ex. 40.) 13 14 G. Nicholas fared worse in the proceedings in Superior Court. 15 On April 15, 2022, Judge Victor M. Torres voided Commissioner Lowe’s orders. 16 (Pl’s Exhibits, Ex. 28.) Meanwhile, Judge William Wood began issuing new orders that, 17 when compared to Commissioner Lowe’s orders, were substantially the same or worse 18 for Nicholas. 19 On November 9, 2021, consistent with Commissioner Lowe’s order, Judge Wood 20 ordered that all funds received from the sale of P2P Holdco be placed into a trust account 21 held by MSM. (Westerman Decl. at ¶ 27; Defs’ NOL, Ex. 41 at 372 of 434.) The order 22 provided for “no exceptions for Nicholas Vena to directly receive funds from or related to 23 P2P Holdco, Inc. . . .” (Id.) 24 Regarding child and temporary spousal support, after hearing evidence, Judge 25 Torres issued an order significantly increasing the support Nicholas owed, both presently 26 and in arrears. (Defs’ NOL, Ex. 42.) Judge Torres’ order incorporated other business 27 proceeds and imputed those as income to Nicholas, which Commissioner Lowe declined 28 to do. (Defs’ NOL, Ex. 42 at 378–379 of 434.) Judge Torres found Nicholas’ average 1 monthly income for 2021 was $345,838, more than 25 times Commissioner Lowe’s 2 finding of $13,666. (Compare Defs’ NOL, Ex. 42 at 379 of 434 with Defs’ NOL, Ex. 32.) 3 He also found Nicholas’ arrears totaled $266,018—more than ten times what 4 Commissioner Lowe had found. (Defs’ NOL, Ex. 42 at 383 of 434.) 5 Regarding custody and visitation, Judge Torres gave Nicholas legal and physical 6 custody of the oldest child and gave Christine legal and physical custody of the other four 7 minor children. (Westerman Decl. at ¶ 29; Defs’ NOL, Ex. 43 at 391–392 of 434.) 8 Regarding parenting time, for the four minor children residing with Christine, Judge 9 Torres gave Nicholas four hours on Friday afternoons, seven hours on Sundays, and two 10 hours on Mondays, with no overnight stays. (Defs’ NOL, Ex. 43 at 392 of 434.) This was 11 significantly less time than Judge Wood ordered in his temporary custody orders (see 12 Defs’ NOL, Ex. 3), and significantly less time than Commissioner Lowe ordered (see 13 Defs’ NOL, Ex. 30 at 224–226 of 434). 14 15 H. Nicholas files this lawsuit and JAMS reimburses his fees. 16 On April 1, 2022, Nicholas filed this lawsuit alleging the four causes of action 17 against Defendants MSM and Westerman. (See Compl. [Doc. 1].) On March 7, 2023, 18 Nicholas filed the First Amended Complaint adding Schulman as a defendant. (See FAC.) 19 Meanwhile, on September 14, 2022, JAMS refunded Nicholas the $63,400 he paid in fees 20 to have Commissioner Lowe privately judge the matter. (Defs’ NOL, Ex. 44.) 21 22 II. SUMMARY-JUDGMENT STANDARD 23 Summary judgment is appropriate under Rule 56(c) where the moving party 24 demonstrates the absence of a genuine issue of material fact and entitlement to judgment 25 as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 26 (1986). A fact is material when, under the governing substantive law, it could affect the 27 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman 28 v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if 1 “the evidence is such that a reasonable jury could return a verdict for the nonmoving 2 party.” Anderson, 477 U.S. at 248. 3 The party seeking summary judgment bears the initial burden of establishing the 4 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party 5 can satisfy this burden in two ways: (1) by presenting evidence that negates an essential 6 element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party 7 failed to make a showing sufficient to establish an element essential to that party’s case 8 on which that party will bear the burden of proof at trial. Id. at 322–23. “Disputes over 9 irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. 10 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 11 “The district court may limit its review to the documents submitted for the purpose 12 of summary judgment and those parts of the record specifically referenced therein.” 13 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). 14 Therefore, the court is not obligated “to scour the record in search of a genuine issue of 15 triable fact.” Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. 16 Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). 17 If the moving party meets its initial burden, the nonmoving party cannot defeat 18 summary judgment by demonstrating “that there is some metaphysical doubt as to the 19 material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 20 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) 21 (citing Anderson, 477 U.S. at 252) (“The mere existence of a scintilla of evidence in 22 support of the nonmoving party’s position is not sufficient.”). Rather, the nonmoving 23 party must “go beyond the pleadings and by her own affidavits, or by ‘the depositions, 24 answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that 25 there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). 26 When making this determination, the court must view all inferences drawn from 27 the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 28 475 U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing 1 of legitimate inferences from the facts are jury functions, not those of a judge, [when] he 2 [or she] is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255. 3 4 III. PLAINTIFF’S OBJECTIONS 5 Nicholas raises a number of objections to certain paragraphs in the declarations of 6 Westerman, Schulman and Defendants’ expert, Edward McIntyre [Doc. 90-5]. The Court 7 will only consider objections to portions of the declarations relied upon in this order. All 8 other objections are OVERRULED as MOOT. 9 Nicholas objects to the entirety of Westerman’s declaration to extent it is based on 10 information and belief. (Pl’s Am. Objections [Doc. 103-1] at No. 1.) The statements cited 11 in this order from Westerman’s declaration are based on her personal involvement in the 12 Vena case. The objections are OVERRULED. 13 Nicholas also objects to paragraph 3 in Schulman’s declaration on the ground that 14 it is based on information and belief. (Pl’s Am. Obj. at No. 2.) The only fact relevant from 15 paragraph 3 for this order is that it shows Schulman was involved in the Vena case. Any 16 objection to that fact is OVERRULED. Nicholas also objects to paragraphs 6, 7 and 8 on 17 the ground that he does not identify the basis for his knowledge. (Pl’s Am. Obj. at No. 2.) 18 It is undisputed that Schulman was involved in the mediations, which is the basis for his 19 knowledge. (Jt. Statement Nos. 24, 26.) The objections are OVERRULED. 20 Finally, Nicholas objects to paragraph 27 of Edward J. McIntyre’s declaration on 21 the ground that it is based on facts that Defendants asserted are privileged and they 22 refused to produce or disclose and for “which Mr. McIntyre has no personal knowledge.” 23 (Pl’s Am. Obj. at No. 11.) McIntyre’s statement is a hypothetical that assumes 24 Defendants believed, based on their professional judgment, that Commissioner Lowe was 25 the appropriate mediator for their other clients. No further information is needed to 26 understand the hypothetical. The objection is OVERRULED. 27 28 1 IV. ANALYSIS 2 A. First Cause of Action – Violation of 42 U.S.C. § 1983 3 The cross motions seek summary adjudication of the first cause of action for 4 violation of 42 U.S.C. § 1983, which is premised on Defendants’ alleged violation of 5 Nicholas’ Fifth Amendment rights. To prevail on this claim, Nicholas must establish 6 (1) his due process rights were violated and (2) that Defendants were acting under color 7 of state law. Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. 8 Atkins, 487 U.S. 42, 48 (1988)).2 9 Regarding the state-action prong, “[p]rivate persons, jointly engaged with state 10 officials in the challenged action, are acting ‘under color’ of law for purposes of § 1983 11 actions.’” DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) (quoting 12 Dennis v. Sparks, 449 U.S. 24, 27–28 (1980)). The “determination of whether a 13 nominally private person or corporation acts under color of state law ‘is a matter of 14 normative judgment, and the criteria lack rigid simplicity.” Pasadena Republican Club v. 15 Western Justice Center, 985 F.3d 1161 (9th Cir. 2021) (quoting Rawson v. Recovery 16 Innovations, Inc., 945 F.3d 742, 747 (9th Cir. 2020) (internal citation omitted)). “Courts 17 must engage in ‘sifting facts and weighing circumstances’ to answer what is ‘necessarily 18 a fact-bound inquiry.’” Id. (quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 939 19 20 21 2 Nicholas’ motion states that the “Court made multiple determinations of law” that are “now law of the 22 case.” (Pl’s P&A [Doc. 83-1] 1:11–12.) He then appears to suggest that the “under color of state law” issue has been resolved. (Id. at 9:15–16, citing Docket 15 and stating: “The ‘under color of state law 23 issue’ has already largely been litigated in this case”; see also Pl’s Opp’n [Doc. 103] at 19:25–26, citing Docket 15 and stating: “The Court has already held that Defendants could be acting under color of state 24 law.”). Any assertion that the Order Denying Defendants’ Motion to Dismiss and Strike (the “Order” [Doc. 15]) resolved the under-color-of-state-law issue is incorrect. The Order simply found that under 25 the applicable standard (i.e., assuming the truth of the Complaint’s allegations and resolving all 26 reasonable inferences in favor of Nicholas), the Complaint sufficiently alleged Defendants were acting under color of state law. The standard applicable to the current motion is different and requires Nicholas 27 to provide evidence supporting the alleged facts and allows the Court to consider Defendants’ evidence. Thus, the previous Order did not establish the law of the case regarding this issue. 28 1 (1982)). Nevertheless, resolution of the issue on summary judgment is appropriate if 2 there is no evidence supporting joint action. 3 There are four tests used to identify when a private party has acted under color of 4 state law: (1) public function; (2) joint action; (3) governmental compulsion or coercion; 5 and (4) governmental nexus. Rawson v. Recovery Innovations, Inc., 945 F.3d 742, 747 6 (9th Cir. 2020). Regardless of the test used, “[a]t bottom, the inquiry is always whether 7 the defendant has exercised power possessed by virtue of state law and made possible 8 only because the wrongdoer is clothed with the authority of state law.” Id. at 747–748. 9 Here, both parties apply the joint action test. (Defs’ P&A [Doc. 86-1] 26:9–7; Pl’s 10 Opp’n [Doc. 89] 20:19–21:25.) This test examines “whether the government has so far 11 insinuated itself into a position of interdependence with a private entity that the private 12 entity must be recognized as a joint participant in the challenged activity.” Pasadena 13 Republican Club, 985 F.3d at 1167 (quoting Brunette v. Humane Soc’y of Ventura Cty., 14 294 F.3d 1205, 1210 (9th Cir. 2002)). “A private entity may be considered a state actor 15 ‘only if its particular actions are “inextricably intertwined” with those of the 16 government.’” Id. (quoting Burnette, 294 F.3d at 1211.) “Courts find that individuals act 17 in concert if there is a ‘substantial degree of cooperative action’ between the state and 18 private actor that results in the deprivation of rights.” Ricotta v. State of California, 4 19 F.Supp.2d 961, 984 (S.D. Cal. 1998) (quoting Collins v. Womancare, 878 F.2d 1145, 20 1150 (9th Cir. 1989)). 21 Generally, § 1983 claims based on joint action between an attorney and judge 22 involve allegations of conspiracies or bribery. For example, in Dennis v. Sparks, 449 U.S. 23 24 (1980), plaintiff filed a § 1983 claim against his adversary in an underlying state-court 24 action. The adversary had bribed the state-court judge in order to obtain an injunction 25 preventing plaintiff from using his oil leases. Eventually, the appellate court dissolved the 26 injunction finding that it was “illegally” issued. In the 1983 case, the district court 27 dismissed the claims reasoning that the private parties could not have acted under color of 28 1 state law since the judge was immune from liability. An en banc panel of the Fifth Circuit 2 reversed, and the Supreme Court affirmed explaining: 3 Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with a judge. 4 But here the allegations were that an official act of the defendant judge was 5 the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting 6 under color of state law; and it is of no consequence in this respect that the 7 judge himself is immune from damages liability. 8 Id. at 28. 9 Nicholas’ § 1983 claim is based on an alleged conspiracy between Defendants and 10 Commissioner Lowe to violate his Fifth Amendment due process rights. (FAC at ¶¶ 52– 11 58.) This claim is based on Defendants’ retention of Commissioner Lowe in the other 12 matters and their failure to disclose those retentions, which Nicholas alleges was done to 13 obtain “favored status” with Commissioner Lowe. (Pl’s Opp’n [Doc. 103] 20:28–21:1.) 14 This argument is unavailing for several reasons. 15 To begin, the evidence Nicholas cites fails to demonstrate a conspiracy between 16 Defendants and Commissioner Lowe to violate his Fifth Amendment rights. At best, the 17 evidence establishes Defendants retained Commissioner Lowe to act as a mediator in 18 eight other matters during the Vena case and failed to disclose those retentions. This 19 evidence falls short of suggesting a further agreement for Commissioner Lowe to ignore 20 the law and evidence, and issue rulings in Christine’s favor. 21 Nicholas’ theory becomes even more dubious when considered with the other 22 evidence attached to the parties’ motions. There is no dispute that Defendants did not 23 unilaterally retain Commissioner Lowe. Instead, she was retained by Defendants and 24 opposing counsel in those cases. Schulman’s undisputed testimony is that in the three 25 matters he mediated, opposing counsel—including one who later represented Nicholas3— 26
27 3 The significance of this fact is that it confirms Schulman’s testimony, otherwise the Court expects 28 Nicholas would have provided a declaration from attorney Herbert disputing the statement. 1 suggested retaining Commissioner Lowe, not Schulman. There is also no dispute that 2 long before the Vena trial began, Commissioner Lowe notified Nicholas and his attorney 3 that she would entertain offers for additional work and, if accepted, she would not 4 disclose that work. This disclosure is entirely at odds with Nicholas’ theory that 5 Commissioner Lowe’s subsequent engagements and failure to disclose were part of a 6 secret conspiracy. Finally, there is also no dispute that after Commissioner Lowe recused 7 herself from the Vena case, the orders entered by the Superior Court judges presiding 8 over the case were either worse or no better for Nicholas. This is persuasive evidence that 9 Commissioner Lowe was not biased against Nicholas and there was no conspiracy for her 10 to favor Christine. 11 Additionally, Nicholas’ purported evidence that Commissioner Lowe favored 12 Christine and her counsel is unavailing. His contention is based on the declaration of his 13 attorney Yelman. (Pl’s Opp’n 20:28–21:1.) The relevant portions of her declaration are 14 entirely conclusory and fail to identify facts supporting her perceptions of Commissioner 15 Lowe. For example, in paragraph 25, Yelman states: 16 During various hearings and the child custody trial, I noticed that Commissioner Lowe seemed at times hostile towards our side, and friendly 17 and familiar towards the other side. I have reviewed the declaration of Oscar 18 Roesler on this subject, and I agree with his observation, based on my own experience. 19 20 (Yelman Decl. [Doc. 103-3] at ¶ 25.) Nowhere in the declaration does Yelman explain 21 why she believed Commissioner Lowe seemed “hostile towards our side.” Nor does she 22 identify any hearing or trial transcripts in support of her opinion. 23 Similarly, in paragraph 28, Yelman contends: 24 The child custody trial, in my view, was not a success for my client. The results we obtained were worse than what I hoped or expected. I had no 25 explanation for this at the time. Over the course of the case, Commissioner 26 Lowe continued to make rulings that made no sense to me, that seemed unnecessarily harsh or hostile to my client, and that were unwarranted based 27 on the law and facts. Although I was puzzled and suspicious, I had no 28 concrete basis for making any accusations of wrongdoing. 1 (Yelman Decl. at ¶ 28.) Again, Yelman fails to explain why she believed Commissioner 2 Lowe was unnecessarily harsh or hostile to her client, or why she believed the rulings 3 were unwarranted based on the law and facts. Even more problematic is the undisputed 4 fact that after Commissioner Lowe recused, the custody and financial support orders 5 issued by the superior court judges were worse for Nicholas. This evidence contradicts 6 Yelman’s conclusory assertions and confirms that Commissioner Lowe’s rulings were 7 not unnecessarily harsh or hostile to Nicholas, nor were they unwarranted based on the 8 law and facts. 9 Aside from the problems with attorney Yelman’s declaration, this Court has 10 reviewed the transcript from child-custody hearing. (See Defs’ NOL, Ex. 32.) There is 11 nothing in the transcript that supports Yelman’s claims regarding Commissioner Lowe. 12 Finally, Nicholas also points out that joint action may be established by financial 13 interdependence. (See Pl’s Opp’n at 20:23–24.) As support, Nicholas cites Burton v. 14 Wilmington Parking Authority, 365 U.S. 715 (1961). 15 In Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), the Supreme 16 Court applied the joint action test to find a privately owned restaurant that discriminated 17 against plaintiff because of his race was acting under color of state law. As support, the 18 Court relied on the fact that the land and building in which the restaurant was located was 19 publicly owned. Id. at 723. “[T]he building was dedicated to ‘public uses’ in performance 20 of the Authority’s ‘essential governmental functions.’” Id. In addition, the land, 21 construction and maintenance of the building were defrayed from the City of 22 Wilmington. Id. As a result, necessary repairs were the Authority’s responsibility, 23 payable from public funds, and the lease agreement required the Authority to supply the 24 restaurant with all decorative finishings and necessary utility connections. Id. at 719–20, 25 724. Particularly important was the “peculiar relationship” of the restaurant to the parking 26 facility in which it was located. According to the Court, the relationship resulted in “an 27 incidental variety of mutual benefits” by providing the restaurant’s guests with a 28 convenient place to park and providing the Authority with additional demand for its 1 parking facilities. Id. at 724. Finally, given the extensive ties between the Authority and 2 restaurant, the Court explained that “[n]either can it be ignored, especially in view of [the 3 restaurant’s] affirmative allegation that for it to serve Negroes would injure its business, 4 that profits earned by discrimination not only contribute to, but also are indispensable 5 elements in, the financial success of a governmental agency.” Id. 6 Rather than support Nicholas’ claim that Defendants were acting under color of 7 state law, Burton demonstrates the absurdity of his position. “Burton teaches us that 8 ‘substantial coordination’ and ‘significant financial integration’ between the private party 9 and government are hallmarks of a symbiotic relationship” that is consistent with joint 10 action. Pasadena Republican Club, 985 F.3d at 1168 (citing Brunette v. Humane Soc’y of 11 Ventura Cty., 294 F.3d 1205, 1213 (9th Cir. 2002). Here, there is no indication of 12 coordination or financial integration between Defendants and Commissioner Lowe. 13 Instead, the evidence confirms the existence of contracts for Commissioner Lowe to act 14 as a mediator for Defendants’ clients. (Pl’s Am. Opp’n [Doc. 103] 21:3–5.) “[M]erely 15 contracting with the government does not transform an otherwise private party into a 16 state actor.” Pasadena Republican Club, 985 F.3d at 1170 (citing Rendell-Baker v. Kohn, 17 457 U.S. 830, 840–41 (1982).) 18 For all these reasons, the Court finds Nicholas has failed to establish Defendants 19 acted under color of state law. Accordingly, Defendants are entitled to summary 20 adjudication of the section 1983 cause of action. 21 22 B. Second Cause of Action – Negligence 23 The cross motions seek summary adjudication of the second cause of action for 24 negligence. To prevail on this claim, Nicholas must establish (1) Defendants owed him a 25 duty, (2) they breached that duty, (3) causation and (4) Nicholas suffered damages. 26 County of Santa Clara v. Atlantic Richfield Co., 137 Cal.App.4th 292, 318 (2006)1185 27 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). The existence of a duty is 28 a question of law for the court. Goonewardene v. ADP, LLC, 6 Cal.5th 817, 837 (2019). 1 Defendants seek summary adjudication on the basis that they did not owe Nicholas 2 a duty. (Defs’ P&A [Doc. 86-1] 8–9.) Nicholas, in turn, contends Defendants owed him a 3 “duty to refrain from extrajudicial actions that would reasonably cause” him harm. (FAC 4 at ¶ 64.) In the context of this case, that duty would amount to either the duty to disclose 5 to Nicholas that Defendants had retained Commissioner Lowe on the other cases or a 6 duty to not retain Commissioner Lowe on the other cases during the pendency of the 7 Vena case. For the following reasons, the Court finds under the facts of this case, 8 Defendants did not owe Nicholas a duty. 9 To begin, Nicholas has not cited a rule or statute that (1) obligated Defendants to 10 disclose to Nicholas that they retained Commissioner Lowe in the other matters or 11 (2) obligated them to not retain Commissioner Lowe in other cases while the Vena matter 12 was pending. In addition, Nicholas’ own expert has admitted that Defendants did not owe 13 him a duty. (Defs’ NOL, Ex. 48 at 433 of 434.) 14 Nicholas, nevertheless, urges this Court to follow Rogozienski v. Allen¸ 2007 WL 15 867773 (4th Dist. March 23, 2007).4 In Rogozienski, the parties in a marriage dissolution 16 proceeding, Shirley and Frank Rogzienski, retained James D. Allen as a temporary judge. 17 Shirley’s attorney, S. Michael Love, was also a friend of Allen, and during the dissolution 18 proceeding gifted Allen a time-share in a resort. The gift was not disclosed to Frank. 19 After judgment was rendered, Frank moved to disqualify Allen. The superior court found 20 Allen was disqualified for accepting the gift and granted Frank a new dissolution 21 proceeding. Frank then sued attorney Love for negligence, among other things, 22 contending that “Love had a duty to refrain from extrajudicial actions and conduct that 23 would cause or was reasonably foreseeable to cause him harm.” Id. at * 3. Frank alleged 24 Love breached this duty when he gave Allen the gift and failed to disclose it, resulting in 25 26 4 Rogozienski is an unpublished California Court of Appeal opinion. Under California Rule of Court 27 8.1115, the opinion “shall not be cited or relied on by a court or a party in any other action.” People v. Russo, 25 Cal. 4th 1124, 1133 n.1. Nicholas contends the case is helpful for evaluating whether 28 Defendants owed him a duty. 1 Frank paying attorney’s fees in the voided dissolution proceeding. Id. at * 6. Love then 2 successfully moved to dismiss arguing he did not owe Frank a duty. The Court of Appeal 3 disagreed and reversed: 4 [W]e conclude Love owed a duty of care under the circumstances not to give a gift to Allen when Love was acting as counsel for a party in the dissolution 5 action. Code of Civil Procedure section 170.1, subdivision (a)(6)(iii), states a 6 judge shall be disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” A 7 disqualified judge has no power to act in any proceeding after his or her 8 disqualification (Code of Civ. Proc., § 170.4), and the acts of the judge subject to disqualification are voidable. (Betz v. Pankow (1993) 16 9 Cal.App.4th 931, 939–940.) It is foreseeable that an attorney for a party 10 giving a nondisclosed gift to a judge during a proceeding would ultimately result in the disqualification of the judge and resulting harm to the parties to 11 the proceeding. 12 Assuming the truth of the facts asserted, the harm to Frank was certain. The 13 connection between Love’s act and Frank’s harm is close. The giving of the 14 gift to a judge in a proceeding in which the benefactor is a party or the counsel for a party is morally blameworthy because it brings the judicial 15 system into disrepute. Imposing a duty not to engage in such conduct serves 16 to prevent future such harmful acts. The community will suffer no burden by imposing the duty. 17 18 Id. at * 7. There are material distinctions between this case and Rogozienski that persuade 19 this Court that Defendants did not owe a duty to Nicholas. 20 Unlike Rogozienski, there is no dispute that before the parties retained 21 Commissioner Lowe, she disclosed that she had previously been retained by Defendants, 22 that she would continue to entertain offers from either party and, if retained, she would 23 not disclose the retention. Despite these disclosures, Nicholas raised no objection and 24 agreed to retain Commissioner Lowe. Given these undisputed facts, it ironic that while 25 Nicholas and his counsel essentially acquiesced to Commissioner Lowe’s breach of her 26 duty of disclosure, they are now suing Defendants for not protecting them against that 27 breach. Under these facts, the Court finds the degree of blameworthiness attributable to 28 Defendants is significantly less than existed with attorney Love in Rogozienski. 1 Additionally, the foreseeability that Frank would be damaged by Love’s conduct 2 was more certain than the foreseeability that Nicholas would be injured by Defendants’ 3 conduct. Unlike Love’s gift of the timeshare, Defendants’ retention of Commissioner 4 Lowe to act as a mediator in the other matters did not necessarily render her disqualified 5 to continue as the parties’ private judge. Instead, Canon 6D(5)(a) required Commissioner 6 Lowe to disclose the retention. Nicholas and his attorney’s knowledge that Commissioner 7 Lowe would not disclose subsequent retentions is also relevant in that it placed them on 8 notice about the need to seek additional disclosures if at any time during the proceedings, 9 they had concerns about the Commissioner’s conduct. As a result, the foreseeability that 10 Defendants’ conduct would lead to Nicholas’ harm was more attenuated. 11 Finally, the Court agrees with Edward McIntyre’s view that Defendants owed a 12 duty to their clients in the other matters to retain Commissioner Lowe if they believed she 13 was the best person available. Regarding this issue, there is no dispute that Yelman 14 viewed her as one of only four highly regarded family law mediators. Under these facts, 15 the Court is concerned that imposing a duty on Defendants would place the attorneys in a 16 catch twenty-two. 17 For all these reasons, the Court finds under the facts of this case, Defendants did 18 not owe a duty to Nicholas and Defendants are entitled to summary adjudication of the 19 negligence cause of action. 20 21 C. Third Cause of Action – Willful Misconduct 22 Defendants also request summary adjudication of Nicholas’ third cause of action 23 for willful misconduct. (Defs’ P&A at 28:26–29:23.) To prevail on this claim, Nicholas 24 must establish Defendants owed him a duty. See Simmons v. Southern Pac. 25 Transportation Co., 62 Cal.App.3d 341, 360 (1976) (explaining that willful misconduct 26 “is an aggravated form of negligence, differing in quality rather than degree from 27 ordinary lack of care.’”) (quoting Morgan v. Southern Pacific Trans. Co., 37 Cal.App.3d 28 1 1006, 1011–1012 (1974)). Because Defendants did not owe Nicholas a duty, the Court 2 will grant Defendants summary adjudication of this cause of action. 3 4 D. Fourth Cause of Action – Intentional Interference with Contractual 5 Relations 6 Defendants also request summary adjudication of Nicholas’ fourth cause of action 7 for intentional interference with contractual relations.5 (Defs’ P&A at 29:24–30:19.) The 8 elements for this claim are: “(1) a valid contract between plaintiff and a third party; 9 (2) defendant’s knowledge of the contract; (3) defendant’s intentional acts designed to 10 induce breach or disruption of the contract; (4) actual breach or disruption; and 11 (5) resulting damage.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 12 525 F.3d 822, 825 (9th Cir. 2008) (citation omitted.) 13 Defendants argue that there is no evidence of an intent to interfere with Nicholas’ 14 contract with JAMS and cite the testimony of Westerman and Schulman that they did not 15 intend to interfere with that contract. (Defs’ P&A at 30:6–9.) Nicholas responds that 16 intent can be inferred from “facts discussed above” and thus summary adjudication is not 17 appropriate. (Pl’s Opp’n 25:18–19.) The Court is not persuaded by Nicholas’ argument 18 for two reasons. 19 First, Nicholas fails to specify which “facts discussed above” in the opposition 20 demonstrate that Defendants intended to interfere with Nicholas’ contract with 21 Commissioner Lowe. As a result, Nicholas is improperly shifting the burden to the Court 22 23 24 5 One essential fact regarding this cause of action is unclear—whether the parties entered separate contracts with Commissioner Lowe (i.e., a contract between Nicholas and Commissioner Lowe and a 25 separate contract between Christine and Commissioner Lowe) or if Nicholas and Christine were parties 26 to the same agreement with Commissioner Lowe. This fact is not clarified in the parties’ briefs, and none of the exhibits submitted by the parties identify a contract between Nicholas and Commissioner 27 Lowe. Presumably, the contract Defendants allegedly interfered with is the October 6, 2020 Stipulation between the parties and Commissioner Lowe. 28 1 to speculate as to which facts he believes support Defendants alleged intent to interfere 2 with the contract. For this reason alone, the Court finds Nicholas has failed to carry his 3 burden in opposing summary adjudication of this cause of action. See Friedman v. Live 4 Nation Merchandise, Inc., 833 F.3d 1180, 1188 (9th Cir. 2016) (a moving party without 5 the ultimate burden of persuasion at trial may discharge its initial burden on summary 6 judgment by “show[ing] that the nonmoving party does not have enough evidence of an 7 essential element to carry its ultimate burden of persuasion at trial.”) (citation omitted). 8 Second, notwithstanding Nicholas’ failure to identify evidence of intent, this Court 9 has reviewed Nicholas’ motion and opposition and has found no evidence demonstrating 10 an intent to interfere with any contract. For example, in his motion, Nicholas cites 11 evidence that Schulman attended the Vena trial on May 25, when Commissioner Lowe 12 disclosed that she donated to Ms. Feldman’s memorial fund but made no mention that she 13 mediated cases on May 3 and 19 with Schulman. (Pl’s P&A at 5:19–26, citing Pl’s 14 Exhibits, Ex. 5–22, 18 and 33.) From this fact, Nicholas contends: “Defendants knew that 15 written disclosures to the parties of additional new matters was required” and knew that 16 Commissioner Lowe failed to make such disclosures because “no written disclosure were 17 sent to them and. . . Commissioner Lowe made no disclosures on the record. . . .” (Id. at 18 5:27–6:6.) Assuming for the sake of argument that the evidence supports the inference 19 that Defendants knew Commissioner Lowe failed to make the disclosures to Nicholas, it 20 does not support an inference that Defendants intended to induce Commissioner Lowe to 21 breach her contract with Nicholas, especially when it would have also meant the breach 22 or termination of Christine’s contract (whether a separate contract or part of the same 23 contract) with Commissioner Lowe. 24 Similarly, Nicholas’ opposition spends considerable time attempting to establish 25 that Westerman and Schulman: “did know what happened during Westerman’s leave; 26 they did talk with other attorneys in the firm about cases; they did know that MSM was 27 retaining Commissioner Lowe in other cases; they did know she had not disclosed the 28 first few new paid matters; and they did know she was likely to continue not disclosing, 1 even as MSM offered her more paid business.” (Pl’s Opp’n at 13:13–17.) Again, even if 2 true, these facts do not suggest an intent to interfere with a contract. 3 For these reasons, the Court finds Defendants are entitled to summary adjudication 4 of the cause of action for intentional interference with contractual relations. 5 6 V. FED. R. CIV. P. 56(d) 7 Citing Federal Rule of Civil Procedure 56(d), Nicholas asks the Court to defer 8 ruling on Defendants’ motion if “the Court believes more evidence is needed to 9 demonstrate a material dispute concerning the facts presented in Westerman’s 10 declaration.” (Pl’s Opp’n at 3:18–20.) The basis for this request is that attorney Yelman 11 was traveling, would not be returning until May and, therefore, did not have access to her 12 files in preparing the declaration is support of Nicholas’ opposition. (Yelman Decl. ¶ 6.) 13 The Court declines to defer ruling on Defendants’ motion for two reasons. 14 First, “[a] party requesting a continuance pursuant to Rule 56(f) must identify by 15 affidavit the specific facts that further discovery would reveal, and explain why those 16 facts would preclude summary judgment.” Tatum v. City and County of San Francisco, 17 441 F.3d 1090, 1100 (9th Cir. 2006).6 Here, Nicholas fails to specify the facts needed. 18 Instead, he improperly leaves it to the Court to guess whether other facts exist that would 19 allow Nicholas to create a disputed issue of fact with Westerman’s declaration. For this 20 reason alone, the Court declines to defer ruling on Defendants’ motion. 21 Second, all citations to Westerman’s declaration in this order are for facts that are 22 not material to any issue decided herein, or for facts that are not subject to reasonable 23 dispute. For example, this order cites Westerman’s declaration at ¶ 4 for the fact that at 24
25 26 6 Federal Rule of Civil Procedure 56(d) was formerly Rule 56(f). Subdivision (d) of Rule 56 “carries forward without substantial change the provisions of former subdivision (f).” Fed. R. Civ. P. 56 advisory 27 committee's note to the 2010 amendment. “Authorities citing former Rule 56(f) thus offer guidance to interpreting and applying Rule 56(d).” Mkrtchyan v. Sacrament Cnty, 2023 WL 6961889 (E.D. Cal. Oct. 28 20, 2023) 1 ||some point “she reduced her workload on the Vena matter in preparation for maternity 2 || leave,” and that she began “maternity leave in late August.” (See supra § I.A.) These 3 are not material to the issues decided in this order. 4 The other paragraphs of Westerman’s declaration cited in this order simply 5 ||confirm the entry or substance of orders in the Vena case. For example, this order cites 6 || Westerman’s declaration at paragraph 3 for the fact that on “March 13, 2020, Judge 7 || Wood entered interim custody and visitation orders.” (See supra § 1.) Another example is 8 order’s citation to Westerman’s declaration at paragraph 19 for the fact that pursuant 9 || to Commissioner Lowe’s July 27, 2021 ruling, beginning on July 1, 2021, child support 10 |/increased to $3,775 per month and temporary spousal support increased to $1,055 for a 11 || total of $4830 per month. (/d. § I.D.) Because each citation to Westerman’s declaration 12 || also includes a citation to the Exhibit that contains the relevant order, the citations to her 13 || declaration are duplicative. For this additional reason, the Court declines to defer ruling 14 Defendants’ motion. 15 16 || VI. CONCLUSION & ORDER 17 For these reasons, the Court DENIES Plaintiff’s motion for summary adjudication 18 || [Doc. 83] and GRANTS Defendants’ summary-judgment motion [Doc. 86].’ 19 IT IS SO ORDERED. 20 || Dated: December 20, 2024 \ 2! 22 Hn. 1 omas J. Whelan 3 Unted States District Judge 24 25 || ——___""[/__W_E” 26 Nicholas argues summary judgment should be denied as to MSM because Defendants “ignore MSM’s 27 || liability... .” (Pl’s Opp’n at 15:18-20.) The Court disagrees. Defendants’ Notice specifically requests summary judgment on behalf of all Defendants. (See Defs’ Notice [Doc. 86].) And because the 28 individual Defendants are not liable under the four causes of action, MSM is also not liable. 24