Judge: Deirdre Hill, Case: 22TRCV00050, Date: 2022-10-25 Tentative Ruling

Case Number: 22TRCV00050    Hearing Date: October 25, 2022    Dept: M

Hearing Date:                          October 25, 2022

Moving Parties:                      Plaintiff Arnold Lutz

Responding Party:                  Defendant County of San Bernardino

Motion for Summary Judgment or, alternatively, for Summary Adjudication

            The court considered the moving, opposition, and reply papers.

RULING

            The motion for summary judgment is DENIED.  The motion for summary adjudication is DENIED.

BACKGROUND

On January 31, 2022, plaintiff Arnold Lutz (self-represented) filed a complaint against County of San Bernardino and San Bernardino Treasurer and Tax Collector for damages.

On June 3, 2022, plaintiff filed a request for dismissal as to San Bernardino Treasurer and Tax Collector.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.  “A plaintiff or cross-complainant 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.  Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  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.”  CCP § 437c(p)(1).

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

            Plaintiff Arnold Lutz (self-represented) requests summary judgment on the complaint on the ground that no triable issue of material fact exists and there is no defense and thus, plaintiff is entitled to judgment as a matter of law.  In the alternative, plaintiff requests summary adjudication in his favor and against defendant as to their affirmative defenses and general denial.

            The complaint alleges that on May 14, 2021, plaintiff was at his job on the computer as an investor researching the properties at the San Bernardino County delinquent tax auction site.  Complaint, ¶5.  Defendant San Bernardino Treasurer and Tax Collector (“SBTTC”) negligently and carelessly listed properties at their tax sale incorrectly in the following manner.  Id., ¶6. 

The parcel plaintiff bid on and won was and is APN 0342-263-18-0000; SBTTC incorrectly recorded deed 0342-263-29-0000.  Defendants had a duty to accurately list tax auction properties in a correct way so plaintiff would not be deprived in his research and bidding.  Defendants breached their duty and were negligent.  Plaintiff makes a living buying and selling tax delinquent properties.  The actual loss to plaintiff was $249,434.  Id., ¶7. 

The parcel plaintiff bid on and won was and is APN 0343-154-11-0000; SBTTC incorrectly recorded deed 0343-154-10-0000.  Actual loss to plaintiff was $204,882.  Id., ¶8.

The parcel plaintiff bid on and won was APN 0342-162-43-0000; SBTTC incorrectly recorded deed 0342-162-02-0000.  Actual loss to plaintiff was $274,809.  Id., ¶9. 

The parcel plaintiff bid on and won was APN 0339-235-21-0000; SBTTC incorrectly recorded deed 0339-232-07-000.  Actual loss to plaintiff was $252,274.  Id., ¶10.

            The court notes that the complaint does not identify a cause of action.  See Cal. Rules of Court, Rule 2.112 (“Each separately stated cause of action . . . must specifically state:  (1) Its number; (2) Its nature . . . .”).  Further, the memorandum of points and authorities does not address the elements of any cause of action or any of defendant’s affirmative defenses.  It only states the standard for summary judgment and adjudication.  It appears based on the allegations that plaintiff is asserting a cause of action for negligence against the County.

            In support of the motion, plaintiff’s declaration states the same as in the complaint.  In support, plaintiff presents copies of photos of which none are legible.  Plaintiff claims that he purchased four properties that the County listed but that the County recorded different properties instead.  Plaintiff does not present any evidence as to the properties the County purportedly listed/offered for sale and evidence of the APNs. 

            The court finds that plaintiff has not met his burden of showing that there is no defense to a cause of action for negligence because plaintiff has not proven each element of a cause of action.

            Evidentiary objections

            The court declines to rule on defendant’s objections as defendant failed to submit a proposed order as required Cal. Rule of Court, Rule 3.1354(c).

In opposition, defendant argues that plaintiff has not met his burden and that there are triable issues of material fact.  Defendant argues that the terms governing plaintiff’s participation in the online tax auction preclude the refund he seeks; he bid on properties he did not intend to; and he is not entitled to the remedy he seeks.

            Defendant presents evidence that the County offers tax-defaulted properties for sale via online auction.  All bidders must agree to certain terms prior to placing any online bid.  The governing terms for the tax sale at issue is entitled San Bernardino County Tax Collector Data Concerning Property to be Sold – Tax Sale 371, conducted between May 8 and May 14, 2021.  Among the pertinent provisions of the Sale Terms are “V.A.  - Notice to Bidder; Bidder’s Duty of Due Diligence:  All properties offered for sale and sold at each auction of this tax sale are offered and sold on an ‘as is’ basis only.  Therefore, each bidder shall alone bear the duty of due diligence to inspect the properties offered for this tax sale and investigate all title matters . . . and all other conditions affecting these properties.”  Section V.D. of the Sale Terms states:  “No Auction Sale Refunds:  There shall be no refund of any purchase price or any portion thereof . . . for a property sold at auction during this tax sale due to a bidder’s or a purchaser’s error, remorse, or failure to exercise due diligence.”  Defendant also states that plaintiff successfully bid on four properties with the following APNs:  0339-232-07-0000, 0342-162-02-0000, 0342-263-29-0000, and 0343-154-10-0000, but that he mistakenly contends he successfully bid on four different parcels:  0342-263-18-0000, 0343-154-11-0000, 0342-162-43-0000, and 0339-235-21-0000.  Defendant contends that those parcels were not offered for sale at Tax Sale 371.  See Chief Deputy Tax Collector Linda Mikulski decl. and Exh. A (Sale Terms).  Mikulski concludes that “[a]ll of my research and review of information regarding Sale 371 thus causes me to conclude that Plaintiff did not complete his due diligence on the four properties that he was bidding on in which he placed multiple bids for each property.  He received the titles to the four parcels that he won in Sale 371.  There were no errors in the recording of these Tax Deeds.”  Mikulski decl., ¶8.  She stated that the County followed all long-standing protocols and procedures in listing the properties for sale and was not “negligent” in any manner.”  Id., ¶9.

The court notes that defendant did not provide underlying documentation showing the APN numbers of the parcels offered for sale and that were sold in Tax Sale No. 371.  In any event, defendant provided substantial evidence to raise a triable issue of material fact.

            Accordingly, the motion for summary judgment and summary adjudication is DENIED.

            Defendant is ordered to give notice of ruling.