Judge: Helen Zukin, Case: 22SMCV00237, Date: 2022-12-08 Tentative Ruling

Case Number: 22SMCV00237    Hearing Date: December 8, 2022    Dept: 207

Background

Plaintiff Bank of America, N.A. (“Plaintiff”) brings this action against Defendants Paul Guez and Elizabeth Strauss Guez (“Defendants”) to collect amounts alleged owed to Plaintiff pursuant to a credit agreement. Plaintiff moves for summary judgment on its sole cause of action against Defendants for breach of contract. Defendants oppose Plaintiff’s motion.

Objections to Evidence

Defendants’ objections 1 and 2 to Exhibit 3 of the Declaration of Kathlena Edwards are SUSTAINED. Defendants’ objections are otherwise OVERRULED.

Request for Judicial Notice

Defendants ask the Court to take judicial notice of the Confirmation Deed for Public Trustee’s Foreclosure Sale. Defendants’ request is unopposed and is GRANTED. Plaintiff asks the Court to take judicial notice of documents located on the website of the Securities and Exchange Commission. As discussed in more detail below, Plaintiff’s request is DENIED.

Summary Judgment Standard

Motions for summary judgment are governed by Code Civ. Proc. § 437c, which allows a party to “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.” (C.C.P. § 437c(a)(1).) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

As to each claim as framed by the complaint, the plaintiff moving for summary judgment must satisfy the initial burden of proof by presenting facts to prove each element of the cause of action entitling the party to judgment on the cause of action. (C.C.P. § 437c(p)(1). Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (C.C.P. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Analysis

Plaintiff’s Complaint alleges a single cause of action against Defendants for breach of contract. To state a cause of action for breach of contract, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Plaintiff alleges its predecessor in interest, LaSalle Bank Midwest, N.A., (“LaSalle”) contracted with Defendants to provide them with a home equity line of credit. (UMF No. 1.) Plaintiff alleges it subsequently merged with LaSalle and assumed the contract with Defendants for the home equity line of credit. (UMF No. 2.) Plaintiff claims it advanced funds from the credit account to Defendants at their request, and Defendants failed to repay these borrowed funds in accordance with the loan contract. (UMF Nos. 3-5.) Plaintiff asserts it has sustained damages in the amount of $450,214.50. (UMF No. 6.)

Defendants argue Plaintiff has insufficiently demonstrated it is the proper party to bring this claim against them for breach of the credit agreement. In other words, Defendants are claiming Plaintiff has insufficiently demonstrated that it is LaSalle’s predecessor in interest with the right to enforce the contract made between LaSalle and Defendants. Plaintiff has submitted June 11, 2019, certificate of its Assistance Secretary, Christine Costamagna, which states “Effective October 17, 2008, LaSalle Bank Midwest National Association, Troy, Michigan, Charter Number 16660, merged into and under the charter and title of Bank of America, National Association, Charlotte, North Carolina, Charter Number 13044.” (Ex. 3 to Edwards Decl. at ¶4 [emphasis in original].)

Defendants claim this certificate is inadmissible because it fails to comply with Code Civ. Proc. § 2015.5. Section 2015.5 provides in pertinent part:

Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public) such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.

(C.C.P. § 2015.5.) Section 2015.5 thus simply allows the use of an unsworn declaration made under penalty of perjury in lieu of a sworn statement. Nothing in section 2015.5 requires all documents submitted as evidence in support of a summary judgment motion to include the date and place of execution or state that it is certified or declared under the laws of the State of California. Accordingly, the Court finds the certificate is not inadmissible because it fails to satisfy Code Civ. Proc. § 2015.5.

Defendants also argue the certificate is inadmissible because it is hearsay and does not show Ms. Costamagna has personal knowledge of the factual assertions she certifies. The Court notes the certificate is an unsworn statement offered to show the truth of the matter asserted therein and is thus inadmissible hearsay unless an exemption to the hearsay rule applies. (Evid. Code §§ 1200-1201.) In reply, Plaintiff does not claim a hearsay exemption applies and the Court notes the declaration of Kathlena Edwards submitted with Plaintiff’s moving papers authenticates certain exhibits as business records under Evid. Code § 1270, et seq., but makes no such showing as to the Costamagna certificate. (Edwards Decl. at ¶¶5-7.)

Plaintiff instead asks the Court for the first time on reply to take judicial notice of the merger between LaSalle and Plaintiff. It is the general rule that “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) The Court notes Plaintiff’s new request for judicial notice fails to comply with the California Rules of Court. Under rule 3.1113(l), a request for judicial notice “must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” Rule 3.1306(c) states “A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material.” Plaintiff’s request violates both rules. In contravention of rule 3.1113(l), the request was not made in a separate document but is instead asserted in the body of Plaintiff’s reply brief. Plaintiff also fails to provide the Court with a copy of the material it wishes the Court to judicially notice and instead directs the Court to search the website of the Securities and Exchange Commission sua sponte to locate “Bank of America Corporation’s Form 10-K (annual report) for the year ending December 31, 2008, as filed with the Securities and Exchange Commission.” (Reply at 5.) The Court thus declines Plaintiff’s request for judicial notice.

Having rejected Plaintiff’s request for judicial notice, the only evidence establishing Plaintiff’s standing to sue on the subject contract is the Costamagna certificate. As Plaintiff offers no evidence showing the Costamagna certificate satisfies an exemption to the hearsay rule, the Court finds the certificate is inadmissible hearsay and thus a triable issue of material fact exists as to Plaintiff’s standing to enforce Defendants’ contract with LaSalle. Accordingly, Plaintiff’s motion for summary judgment is DENIED without prejudice to refile the motion with evidence establishing Plaintiff’s standing to bring this action against Defendants. As the Court has found a triable issue of material fact exists as to Plaintiff’s standing, it need not address Defendants’ arguments regarding Plaintiff’s damages and declines to do so.

Conclusion

Plaintiff’s motion for summary judgment is DENIED without prejudice.