Judge: David A. Rosen, Case: 21GDCV01364, Date: 2022-12-23 Tentative Ruling
Case Number: 21GDCV01364 Hearing Date: December 23, 2022 Dept: E
Hearing Date: 12/23/2022 – 2:00pm
Case No: 21GDCV01364
Trial Date: 04/17/2023
Case Name: VAHE ALEK SAGINIAN, et al. v. BANK OF AMERICA, N.A., et al.
TENTATIVE RULING ON PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION
Moving Party: Plaintiffs, Vahe Alex Saginian and Alice Torosian, both individually and as trustees of the Vahe Alek Saginian and Alice Torosian Living Trust dated September 14, 2019 (Plaintiffs)
Responding Party: Defendants, Bank of America, N.A.; PRLAP, Inc.; U.S. Bank National Association, as Trustee of Banc of America Mortgage 2008-A Trust, Mortgage Pass-Through Certificates, Series 2008-A; Specialized Loan Servicing, LLC
Proof of service timely filed (CRC 3.1300(c)): Ok
Correct Address (CCP §§ 1013, 1013(a)): Ok
Moving Papers: Notice of Motion and Memo; Vahe Alek Saginian Declaration; Proposed Order; Request for Judicial Notice; Ryan Hemar Declaration; Sep. Stmt.; Alice Torosian Declaration
Opposition: Bank of America, N.A. and PRLAP, Inc. Oppo; Sep. Stmt. Bank of America, N.A. and PRLAP; U.S. Bank and Specialized Oppo; RJN for U.S. Bank and Specialized; Objections to Hemar Decl.; Liberato Di Bernardo Declaration; Evidentiary Objections to Alice Torosian Decl.; Decl. of Bank of America, N.A.; Decl. of PRLAP, Inc.; Sep. Stmt. of U.S. Bank and Specialized; Decl. of Specialized; Further Sep. Stmt. of U.S. Bank and Specialized; Evidentiary Objections of Vahe Saginian; Declaration of Andrew Mase
Reply: Plaintiffs’ omnibus reply; Plaintiffs’ evidentiary objections to declaration of specialized; Response to further sep. stmt.; Declaration of Scott E. Gizer
75/80 Days
Under 437c (2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (CCP §437c(a)(2).)
Here, although not brought up by the Opposition papers, the instant motion is untimely. The instant hearing is set for December 23, 2022, and 75 days before the hearing would be October 9, 2022. Under CCP §437c(a)(2), two court days must be added for delivery providing for overnight delivery. Here, the motion was served by e-mail. Two court days after October 9, 2022, would be October 6, 2022, and the instant motion was served October 7, 2022 and is thus untimely.
RELIEF REQUESTED
Plaintiffs move the Court for an order pursuant to CCP §437c(f) granting summary adjudication in their favor on the Second Amended Complaint (“SAC”) in this action against Defendants Bank of America, N.A. (“BOA”), U.S. Bank National Association, as trustee of Banc of America Mortgage 2008-A Trust, Mortgage Pass-Through Certificates, Series 2008-A Bank (“BOAM”), PRLAP, Inc. (“PRLAP”), The Mortgage Law Firm (“Mortgage Law Firm”) and Specialized Loan Servicing, LLC (“SLS”) (collectively, “Defendants”) on Plaintiffs’ claims for quiet title and declaratory relief. This motion is made on the ground that there is no genuine issue of material fact with respect to the SAC, entitling Plaintiffs to adjudication of these claims in the SAC as a matter of law on each of the following issues:
Issue No. 1: There is no genuine issue of material fact with respect to Plaintiffs’ first cause of action for quiet title against Defendants. The undisputed material facts establish that BOA was aware that a prior lien existed on the subject property at the time it issued a loan to Plaintiffs. Furthermore, Defendants are barred from claiming that the prior lien remains valid, or that BOA did not owe Plaintiffs a duty of disclosure, under the doctrines of laches and equitable estoppel. Plaintiffs are therefore entitled to judgment on the first cause of action. (See Separate Statement of Undisputed Material Facts, Nos. 1 through 30.)
Issue No. 2: There is no genuine issue of material fact with respect to Plaintiffs’ second cause of action for declaratory relief against Defendants. The undisputed material facts establish that BOA was aware that a prior lien existed on the subject property at the time it issued a loan to Plaintiffs. Furthermore, Defendants are barred from claiming that the prior lien remains valid, or that BOA did not owe Plaintiffs a duty of disclosure, under the doctrines of laches and equitable estoppel. Plaintiffs are therefore entitled to judgment on the second cause of action. (See Separate Statement of Undisputed Material Facts, Nos. 31 through 60.)
BACKGROUND
The operative complaint at issue here is the verified SAC which alleges five causes of action against Defendants for: (1) Quiet Title, (2) Declaratory Relief, (3) Fraudulent Concealment, (4) Fraudulent Misrepresentation, and (5) Negligent Misrepresentation.
LEGAL STANDARD
A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (CCP §437c(f)(1).)
A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP §437c(f)(2).)
Plaintiff has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (CCP §437c(p).) Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material fact exists as to the cause of action or a defense thereto. (Id.)
ANALYSIS
“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules Court, Rule 3.1350(b).)
Further, as explained in Schmidlin v. City of Palo Alto:
A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must “state[ ] specifically in the notice of motion and ... repeat[ ], verbatim, in the separate statement of undisputed material facts,” “the specific cause of action, affirmative defense, claims for damages, or issues of duty” as to which summary adjudication is sought. (Former Cal. Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546, 235 Cal.Rptr. 106 [“‘If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion....’ [Citation.] There is a sound reason for this rule: ‘... the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied’ ”].)
Here defendants' separate statement reflects no attempt to comply with this requirement. That alone precludes a holding that the trial court erred in denying the motion.
(Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)
Here, Plaintiffs’ motion for summary adjudication is not in compliance with the procedural requirements for a motion for summary adjudication. Plaintiffs’ separate statement does not address many of the issues identified in the notice of the motion – for example, laches and equitable estoppel.
Further, the Opposition by U.S. Bank points out how the notice does not identify the issues that are subject to the motion as to each Defendant.
Overall, the Court notes that Plaintiffs’ motion is written in a confusing, vague, and unclear manner that makes the motion nearly impossible to decipher. Plaintiffs’ motion does not make clear how it established each element of each cause of action under which it is moving as to each Defendant. Plaintiffs’ motion also does not make clear how laches, estoppel under civil code 3543, or equitable estoppel applies to each cause of action and each Defendant and why summary judgment should be granted to those causes of action based on those arguments.
TENTATIVE RULING
Plaintiffs’ motion for summary adjudication filed on 10/07/2022 is DENIED in its entirety. Plaintiffs did not follow the requirements of CRC 3.1350(b). Further, the motion was untimely.
“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) Here, the Court is not ruling on objections.
The Court DENIES Plaintiffs’ request for judicial notice since they would have no effect on the Court’s ruling. For the same reason, the Court DENIES Defendants’ request for judicial notice.
21GDCV01364 Saginian: Preliminary Injunction:
The Court will hear argument.