Judge: David B. Gelfound, Case: 22CHCV00415, Date: 2024-08-21 Tentative Ruling

Case Number: 22CHCV00415    Hearing Date: August 21, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT

Motion filed: 6/5/24

MOVING PARTY: Defendants Federal National Mortgage Association and REO Management Solutions, LLC

RESPONDING PARTY: Plaintiff Dominic Munib Barbar

NOTICE: OK.

RELIEF REQUESTED: An order granting the Motion for Summary Judgment on Plaintiff’s Second Amended Complaint.

EVIDENTIARY OBJECTIONS: The Court rules on Defendants’ evidentiary objections as follows:

SUSTAINED: Nos. 3 (lack of foundation, speculation and conclusion), and 4 (lack of personal knowledge).

OVERRULED: Nos. 1, 2, and 5.

TENTATIVE RULING: The motion is GRANTED IN PART.

BACKGROUND

On June 8, 2022, Plaintiff Dominic Munib Barbar (“Plaintiff” or “Barbar”) initiated this action against Federal National Mortgage Association (“Fannie Mae”), Pinnacle Estate Properties, Inc., Raquel Magro, REO Management Solutions, LLC (“REO”), National Field Representatives (“NFR”), Ehsan Yaghoubi, and Does 1 to 100. Subsequently, on September 26, 2022, Plaintiff submitted a request for dismissal, dismissing Defendants Pinnacle Estate Properties, Inc. and Raquel Magro, which was entered by the Clerk on the same day.

On October 12, 2022, Plaintiff filed the Second Amended Complaint (“SAC”) against Defendants Fannie Mae, REO, NFR, and Does 1 to 100, alleging ten causes of action: (1) Conversion, (2) Breach of Covenant of Good Faith and Fair Dealing, (3) Breach of Covenant of Quiet Enjoyment of the Premises, (4) Trespass, (5) Nuisance (Civil Code § 3479), (6) Intentional Infliction of Emotional Distress, (7) Negligent Infliction of Emotional Distress, (8) Negligence, (9) Farud Count 1, and (10) Fraud Count 2.

On March 8, 2023, the Court sustained the demurrer filed by Defendant REO as to all causes of action except for the Trespass claim. (2023/3/8 Minute Order.) Subsequently, Defendants Fannie Mae and REO, and NFR filed their respective Answers to the remaining Trespass cause of action in the SAC on April 17, and May 25, 2023, respectively.

 On June 5, 2024, Defendants Fannie Mae and REO (the “Moving Defendants”) filed the instant Motion for Summary Judgment (the “Motion”). Subsequently, Plaintiff filed his Opposition on August 1, 2024, and Fannie Mae and REO replied on August 15, 2024.

Additionally, on June 7, 2024, Defendant NFR filed its motion for summary judgment. Plaintiff filed his Opposition on August 1, 2024, and NFR replied on August 14, 2024.

ANALYSIS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The motion for summary judgment shall be granted 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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [moving party’s] favor, the burden then shifts to the [opposing party] to make a prima facie showing of the existence of a triable material factual issue.”' (Citation.)" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) 

A.    Motion for Summary Judgment

             As framed by the SAC, Plaintiff alleges Defendants Fannie Mae, REO and NFR, and their authorized representatives or agents, unlawfully entered and changed the lock of the his residence at 25511 Schubert St. Unit F, Stevenson Ranch, CA 91581 (the “Property”). (SAC ¶ 44.)

1)      Trespass

Trespass is an invasion of the plaintiff’s interest in the exclusive possession of land. [Citations.]  ‘“The essence of the cause of action for trespass is an “unauthorized entry” onto the land of another.” [Citation.]’ [Citation.] Thus, in order to state a cause of action for trespass a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights. [Citations.]” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173–1174.)

Trespass may be  “'by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person....'” (Martin Marietta Corp. v. Ins. Co. of North America (1995) 40 Cal.App.4th 1113, 1132 (Martin Marietta Corp.)

            The following facts are undisputed: Plaintiff has been a tenant residing at the Property since 2021 (Barbar Decl. ¶ 2; Schneider Decl. ¶ 4, Ex. “9”.) On May 6, 2022, Plaintiff was not present at the Property for the inspection, changing of locks, and installation of lockbox (the “Incident”) because he was out of the country in Dubai. (UMF No. 5.) Plaintiff returned to the Property from his trip to Dubai and had access to the Property via the lockbox. (UMF No. 6.) Additionally, Plaintiff has continued to have access to the Property after returning from his trip and is now aware of any other entry onto the Property other than the Incident. (UMF No. 7.)

1)      Fannie Mae’s Burden of Prima Facie Showing

            Moving Defendants argue that Plaintiff cannot establish the dispositive element of the Trespass claim that Fannie Mae was present or participated in the May 6, 2024 Incident, or that it hired, employed, retained, instructed, requested, or otherwise directed NFR to take any action related to the Property. (Mot. at p. 9.)

            To support their position, Moving Defendants present evidence indicating that Fannie Mae did not have any ownership interest or control over the Property at the time of the Incident. Specifically, it shows that Fannie Mae had sold its entire interest in the Property, with the sale closing on March 31, 2022, to HB1 Alternative Holdings, LLC (“HB1”). The Grant Deed evidencing this sale was recorded on August 15, 2022. (Whitehead Decl. ¶¶ 6-7, Ex. “7.”) Declarant John Whitehead (“Whitehead”), an Occupied Property Manager of Fannie Mae, attests that he has personal knowledge of the facts stated in his declaration. (Whitehead Decl. ¶¶ 1-2). Whitehead further declares that Fannie Mae did not hire, employ, retain, instruct, request, or otherwise direct REO to retain NFR for services related to the Property, including the inspection and securing of the Property on May 6, 2022. (Id. ¶¶ 8-9.)

            Based on the record presented, the Court finds that Fannie Mae has satisfied its burden to establish a prima facie showing that it is entitled to a favorable ruling on the Trespass claim. The burden now shifts to Plaintiff.

2)      REO’s Burden of Prima Facie Showing

i)                   REO Fails to Demonstrate that It Did Not Cause the Inspection and Trespass.

The undisputed facts establish two actionable events that occurred on May 6, 2022: (1) the unauthorized entry onto Plaintiff’s residence, and (2) the deprivation of Plaintiff’s access to the Property by changing the locks and installing a lockbox. (UMF No. 5.)

Moving Defendants present a declaration from Kevin Flannigan (“Flannigan”), acting on behalf of REO and its wholly owned subsidiary, PHH Mortgage Corporation (“PHH”).  Flannigan attests that he is a Senior Loan Analyst at Ocwen Financial Corporation, a wholly owned subsidiary of PHH, and that he provides this declaration based on his personal knowledge and review of the business records maintained by REO. (Flannigan Decl. ¶¶ 1-2.)

Notably, Flannigan attests that REO assigned NFR as the acting preservation company for the Property on May 2, 2022 (Id. ¶ 7), and that the inspection and securing of the Property on May 6, 2022, were carried out under the instruction of NFR. (Id. ¶ 8.)

            However, REO only asserts that NFR was instructed not to secure the Property by changing the locks and installing a lockbox if the Property was determined to be occupied. (Flannigan Decl. ¶ 10.) Despite this, REO fails to provide evidence that it did not cause NFR to inspect the Property.

Given that the inspection involved an unauthorized entry onto the Property, this action alone constitutes trespass. The mere assertion that NFR was instructed not to secure the property if it was occupied does not absolve REO of liaiblity for the initial unauthorized entry by NFR or its representatives. (Martin Marietta Corp, supra, 40 Cal.App.4th at p. 1132 [“Trespass may be ... by causing the entry of some other person ....”]

Consequently, REO has failed to meet the initial burden of showing that justifies a ruling in its favor.

ii)                 REO’s Argument that Plaintiff Lacks Evidence to Establish a Relationship between REO and NFR, or an Independent Contractor, Does Not Meet Its Initial Burden.

In a motion for summary judgment, it is insufficient for the moving defendant to merely point out the absence of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 (Aguilar) fn 23; see also Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 (Gaggero).) The defendant must “present evidence ... showing that plaintiff does not have and cannot obtain evidence to support his or her claim.” (Gaggero, supra, 108 Cal.App.4th at p. 891.)

Here, Moving Defendants argue that Plaintiff’s assertion that Defendants, and each of them, are agents of one another is conclusory and unsupported by evidence. (Reply at p. 8.) However, as established by case law in Aguilar and Gaggero, it is insufficient for the defendant to merely point out the absence of evidence. The burden is on Moving Defendants to present evidence that conclusively negates the existence of a relationship between REO and NFR, or between REO and an independent contractor.

The evidence provided by Moving Defendants only shows that REO assigned NFR as the acting preservation company for the Property on May 2, 2022 (Flannigan Decl. ¶ 7), and that the inspection and securing of the Property on May 6, 2022, were carried out under the instruction of NFR. (Id. ¶ 8.)

Consequently, the Court finds that Moving Defendants have failed to meet this burden.

iii)               REO Fails to Establish that It Is Not Liable for the Independent Contractor’s Negligence

            Furthermore, Moving Defendants argue that even if a relationship between REO and NFR is established, California law provides that it is not responsible for damages caused by an independent contractor’s negligence. (Reply, at p. 8.) The Court disagrees with this assertion.

            The Court notes that “[a]n independent contractor cannot with immunity be hired to perform an act which necessarily involves a trespass.” (Loughan v. Harger-Haldeman (1960) 184 Cal.App.2d 495, 501.) (Underlines added.) In Loughan, the Court of Appeal held that a defendant is not shielded from liability by hiring a collection service, an independent contractor, to repossess an automobile from the plaintiff’s property, which necessarily involves a trespass. (Ibid, also see Yee Chuck v. Board of Trustees, 179 Cal.App.2d 405, [“Stanford ...  cannot insulate itself from liability for the condition created on the land by its Contractor by claiming that the Contractor was an “independent Contractor.” (Id. at p. 411.) The reasoning was that “[while] Stanford would not ordinarily be liable to third persons for negligence of the Contractor in doing the work, that is, for ‘active conduct,’ but that it not what is here involved, Stanford is not shielded by the fact that the Contractor was an independent contractor.”])

            Here, REO’s claim that NFR employed an independent contractor to perform the inspection and securing of the Property is not substantiated by admissible evidence. Even if this were established as an undisputed material fact, REO would not be shielded from liability under the ruling in Loughan and Yee Chuck, as the inspection of the Property is an act that necessarily involves trespass.

            Accordingly, the Court determines that REO has failed to meet the initial burden in this Motion, and the burden has not shifted to Plaintiff as to the claim against REO.

Therefore, the Court DENIES the Motion for Summary Judgment as to REO.

3)      Plaintiff’s Burden to Show the Existence of a Triable Material Factual Issue as to the Claim against Fannie Mae

Since the Court has previously determined that Fannie Mae has satisfied its initial burden, the burden now shifts to Plaintiff to show that a triable issue of one or more material facts exists as to the cause of action for Trespass.  (Code Civ. Proc., § 437c, subd. (p)(2).)

Here, Plaintiff argues that there exists a triable material factual issue as to Defendant Fannie Mae’s ownership and control over the Property at the time of the Trespass. (Opp’n. at p. 11.) He relies on evidence including a property report dated May 31, 2022 (Mot. Ex. “1”), and a Notice to Vacate (the “Notice”) dated May 19, 2022. (Ibid.)

In response, Fannie Mae argues that the property report does not dispute its claim that Fannie Mae sold its interest on March 31, 2022, with the Grant Deed being subsequently recorded on August 25, 2022, as the delay in title recording does not create an ownership interest for Fannie Mae when such interest has been sold. (Reply at p. 5, Whitehead Decl. ¶¶ 6-7.) It also contends that the Notice constitutes inadmissible hearsay evidence. (Def.’s Response to Pl.’s Separate Statement, No. 1)

The Court finds that the property report presented by Plaintiff does not genuinely dispute Fannie Mae’s evidence, which shows that it sold its interest in Property to HB1 on March 31, 2022, based on competent evidence, including declarations and business records.

Additionally, the Court agrees with Fannie Mae that the Notice dated May 19, 2022, is inadmissible hearsay if offered to prove the truth of the assertion that Fannie Mae owned the Property on that day. Consequently, the Court does not consider this evidence. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543 [“A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.”])

Based on the foregoing, the Court concludes that Plaintiff has failed to set forth the specific facts showing that a triable issue of material fact exists as to Fannie Mae’s ownership and control over the Property. The Court finds no triable issue of material fact concerning the undisputed fact that Fannie Mae neither entered nor caused others to enter the Property on May 6, 2022.

Therefore, the Court GRANTS the Motion for Summary Judgment as to Fannie Mae.

CONCLUSION

Defendants’ Motion for Summary Judgment is GRANTED IN PART.

The Court GRANTS the Summary Judgment as to Defendant Federal National Mortgage Association.

The Court DENIES the Summary Judgment as to Defendant REO Management Solutions, LLC.

Moving party to provide notice.

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT

Motion filed: 6/7/24

MOVING PARTY: Defendants National Field Representatives, Inc.

RESPONDING PARTY: Plaintiff Dominic Munib Barbar

NOTICE: Not OK (see analysis below).

RELIEF REQUESTED: An order granting the Motion for Summary Judgment on Plaintiff’s Second Amended Complaint.

TENTATIVE RULING: The motion is TAKEN OFF CALENDAR.

BACKGROUND

On June 8, 2022, Plaintiff Dominic Munib Barbar (“Plaintiff” or “Barbar”) initiated this action against Federal National Mortgage Association (“Fannie Mae”), Pinnacle Estate Properties, Inc., Raquel Magro, REO Management Solutions, LLC (“REO”), National Field Representatives (“NFR”), Ehsan Yaghoubi, and Does 1 to 100. Subsequently, on September 26, 2022, Plaintiff submitted a request for dismissal, dismissing Defendants Pinnacle Estate Properties, Inc. and Raquel Magro, which was entered by the Clerk on the same day.

On October 12, 2022, Plaintiff filed the Second Amended Complaint (“SAC”) against Defendants Fannie Mae, REO, NFR, and Does 1 to 100, alleging ten causes of action: (1) Conversion, (2) Breach of Covenant of Good Faith and Fair Dealing, (3) Breach of Covenant of Quiet Enjoyment of the Premises, (4) Trespass, (5) Nuisance (Civil Code § 3479), (6) Intentional Infliction of Emotional Distress, (7) Negligent Infliction of Emotional Distress, (8) Negligence, (9) Farud Count 1, and (10) Fraud Count 2.

On March 8, 2023, the Court sustained the demurrer filed by Defendant REO as to all causes of action except for the Trespass claim. (2023/3/8 Minute Order.) Subsequently, Defendants Fannie Mae and REO, and NFR filed their respective Answers to the remaining Trespass cause of action in the SAC on April 17, and May 25, 2023, respectively.

 On June 5, 2024, Defendants Fannie Mae and REO filed their Motion for Summary Judgment. Subsequently, Plaintiff filed his Opposition on August 1, 2024, and Fannie Mae and REO replied on August 15, 2024.

Additionally, on June 7, 2024, Defendant NFR filed the instant Motion for Summary Judgment (the “Motion”). Plaintiff filed his Opposition on August 1, 2024, and NFR replied on August 14, 2024.

ANALYSIS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The motion for summary judgment shall be granted 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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [moving party’s] favor, the burden then shifts to the [opposing party] to make a prima facie showing of the existence of a triable material factual issue.”' (Citation.)" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) 

A.    The Service of the Motion is Inadequate.

            Code of Civil Procedure section 437c, subdivision (a)(2), provides that “Notice of motion [for summary judgment] 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….” 

            Additionally, "[a]ny period of notice ... after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days." (Code Civ. Proc., sec. 1010.6, subd. (a)(3)(B).)

Trial courts cannot shorten the minimum 75-day notice period absent the express consent of the parties. (McMahon v. Supervisor Court (2003) 106 Cal.App.4th 112, 118, Urshan v. Musician’s Credit Union (2004) 120 Cal.App.4th 758, 768.) 

In Robinson v. Woods (2008) 168 Cal.App.4th 1258 (Robinson), the trial court, in an attempt to rectify inadequate service, exercised its discretion by continuing the hearing for four days to meet the required number of days for notice period, and eventually granted summary judgment. However, the Court of Appeal reversed the judgment, finding a violation of due process and an abuse of discretion. The Robinson Court stated that “on the noticed hearing on April 12, 2007, the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew, and 75 days is mandatory where notice is given personally.” (Robinson, supra, 168 Cal.App.4th at pp. 1268-1269.) 

Here, NFR submitted a Proof of Service, demonstrating that the Motion papers were served on June 7, 2024, by e-mail or electronic transmission. (2024/6/7 Proof of Service.) Given this service, the earliest permissible hearing date for the Motion is August 23, 2024, accounting for the minimum 75-day notice period plus two court days for the method of electronic service. (See Code Civ. Proc., § 437c, subd. (a)(2); Code Civ. Proc., § 1010.6, subd. (a)(3)(B).) The current hearing date of August 21, 2024, falls two court days short of the required notice period.

Given that there is no express consent on the record to shorten the notice period, and following the ruling in Robinson, the Court lacks the authority to continue the current hearing date for only two days. The Robinson case instructs that "at that point, the notice had to begin anew ... if the trial court did not want to continue the impending trial date for the necessary amount of time [75 days], it could have taken the motion off calendar." (Robinson, supra, 168 Cal.App.4th at 1268.)

            Consequently, the hearing on this Motion is TAKEN OFF CALENDAR.

            The Court may consider the subsequent filing of the Motion if accompanied by a Proof of Service demonstrating that proper service and the required notice period have been met.

CONCLUSION

Defendant’s Motion for Summary Judgment is TAKEN OFF CALENDAR.

Moving party to provide notice.