Judge: Alison Mackenzie, Case: 22STCV05079, Date: 2024-02-20 Tentative Ruling

Case Number: 22STCV05079    Hearing Date: February 20, 2024    Dept: 55

NATURE OF PROCEEDINGS:  Motion of Defendant Thomas Block for Summary Judgment/Summary Adjudication; Defendant Sue Emrek’s Joinder to Defendant’s Motion for Summary Judgment/Summary Adjudication

The unopposed motion and joinder are granted.

The Court grants the unopposed requests for judicial notice filed 12/8/24 and 9/21/24.

BACKGROUND

Plaintiffs NIKI-ALEXANDER SHETTY and ADINA ZAHARESCU (“Plaintiffs”) bring this case against Defendants Thomas Block and Sue Emrek (“Defendants”) related to Defendants’ involvement with a loan and deed of trust for the property at 4351 La Barca Drive, Tarzana, California (the “Property”). Plaintiffs’ causes of action in the First Amended Complaint (“FAC”) against Defendant Block are: (1) Wrongful Foreclosure; (7) Accounting; and (8) Unfair Business Practices. Plaintiffs’ causes of action against both Defendants are: (2) Quiet Title; (3) Cancellation of Instrument; (4) Declaratory Relief; (5) Violation of Regulation Z of the Truth in Lending Act; and (6) Fraud.

Defendant Block has filed a motion for summary judgment, or, in the alternative, summary adjudication of the FAC. Defendant Emrek joins in the motion. Plaintiff has not filed an opposition to the motion.

LEGAL STANDARD

In moving for summary judgment or summary adjudication, a “defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).)

Once the defendant has satisfied that burden, the burden shifts to the plaintiff “to show, by responsive separate statement and admissible evidence, that triable issues of fact exist.”  Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal. App. 4th 1411, 1418, disapproved on other grounds by Black Sky Cap., LLC v. Cobb (2019) 7 Cal. 5th 156, 165; see also CCP § 437c(p)(2). A plaintiff’s failure to provide a separate statement with the opposition may “constitute a sufficient ground, in the court’s discretion, for granting the motion.” (CCP § 437c(b)(3).)

“Judicial notice, of course, may be utilized on a motion for summary judgment.”  Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 887.  Failure to object to requests for judicial notice constitutes a waiver of the objection. Giles v. Horn (2002) 100 Cal. App. 4th 206, 228.

DENIAL OF PLAINTIFFS’ REQUEST FOR CONTINUANCE

On 2/6/24, the Court denied Plaintiffs’ ex parte application to continue the summary judgment hearing because Plaintiffs failed to show good cause for such relief. Plaintiffs failed to demonstrate what facts essential to opposing summary judgment may exist but could not be presented to warrant a continuance of the motion hearing. The trial schedule of Plaintiffs’ counsel does not constitute good cause to continue the hearing. Further, the documents filed by Defendant Emrek on 12/8/23 were not a motion, but instead a joinder in the prior motion for summary judgment. The Court’s ruling on the ex parte leaves the 2/5/24 opposition deadline intact.

ANALYSIS

The Court determines that Defendants’ separate statements of undisputed facts, which reference Defendants’ evidence, suffice to establish that one or more elements of each of Plaintiffs’ claims fail as a matter of law. Specifically, the undisputed facts show that each of the claims have no merit for the following reasons: (1) the absence of fraudulent alterations of the subject promissory note and deed of trust; (2) inapplicability of  Regulation Z of the TILA statute due to Defendants being a small servicer of fewer than 5000 loans per year (12 CFR § 1026.41(e)(4)), (3) Plaintiffs’ failure to tender the debt in relation to the deed of trust, (4) the instant case being barred by collateral estoppel and res judicata given a ruling in Plaintiffs’ prior District Court action, (5) the absence of any foreclosure and, (6) the bar of the Statute of Limitations and laches as to alleged misrepresentations occurring in 2005 and Plaintiffs’ alleged knowledge by 2008. (Def. Block’s Sep. Stmt. Nos. 1-85; Def Emrek’s Sep Stmt. Nos. 1-86.)

The burden thus shifts to Plaintiffs, but Plaintiffs filed no opposition to raise any triable issue of material fact as to the raised issues.

CONCLUSION

The unopposed motion and joinder are granted, considering the shifting of the burden of proof to the Plaintiffs who have not opposed the motion.