Judge: James A. Mangione, Case: 37-2019-00040508-CU-BC-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2019-00040508-CU-BC-CTL ORTMAN VS STRANDGAARD [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's Motion for Summary Judgment or, in the Alternative, Summary Adjudication is granted.

The moving party on a motion for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If satisfied, the burden shifts to the opposing party to make his or her own prima facie showing of the existence of a triable issue of fact. (Id.) 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' (Id.) When a party opposing summary judgment fails to include a separate statement or the separate statement fails to unequivocally state which facts are disputed, the facts in the moving party's separate statement are deemed undisputed. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1186 n.4 (citing Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1094).) As such, the following facts are undisputed. On May 3, 2018, Plaintiff agreed to give Defendant a loan in the amount of $30,000.00, which Defendant agreed to repay with 8% interest on or before August 3, 2018. (UMF 2.) Defendant placed her real property as collateral for the loan, despite knowing that the property was under a Note of Default and that she had no legal right to do so. (UMF 16.) Defendant defaulted and never paid Plaintiff back the loan. (UMF 9-10.) Fraud The essential elements of fraud are '(1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance [i.e. defraud], (4) actual and justifiable reliance, and (5) resulting damage.' (Chapman v. Skype Inc. (2013) 220 Cal. App. 4th 217, 230-31.) Here, Plaintiff has proven, by undisputed evidence, that Defendant misrepresented her intention to repay the loan and her ability to use her home as collateral.

(UMF 8, 12, 16.) Additionally, Plaintiff has shown that Defendant's misrepresentation was made with the intent to induce reliance by Plaintiff and that, based on this misrepresentation, Plaintiff loaned Defendant money to her detriment. (UMF 7, 14-15, 17.) Therefore, Plaintiff is entitled to judgment as a matter of law.

Common Count - Money Had and Received The elements of a cause of action for money due are: (1) the statement of indebtedness in a sum certain; (2) consideration; and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) As discussed above, the parties entered into a written loan agreement with specific repayment terms, which Defendant failed to repay. Therefore, Plaintiff is entitled to judgment on this cause of action.

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2954019  7 CASE NUMBER: CASE TITLE:  ORTMAN VS STRANDGAARD [IMAGED]  37-2019-00040508-CU-BC-CTL Financial Elder Abuse 'The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a 'person residing in this state, 65 years of age or older.'' (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404 (citing Welf. & Inst. Code, § 15610.27).) 'Financial abuse of an elder or dependent adult occurs when a person or entity does any of the following . . .

[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud or both . . .' (Welfare and Institutions Code § 15610.30(a).) 'A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.' (Id. § 15610.30(b).) As discussed above, Defendant fraudulently induced Plaintiff to loan her $30,000 with no intention of repaying the loan and with knowledge that she did not have the legal right to use her home as collateral. At the time the parties entered into the agreement, Defendant knew that Plaintiff was 65 years old. (SSUMF No. 13.) Therefore, Plaintiff has proven, by clear and convincing evidence, that she is entitled to judgment as a matter of law on this cause of action.

Finally, as the Court previously granted judgment on the pleadings as to Plaintiff's first cause of action against Defendant for breach of contract, Plaintiff is entitled to summary judgment on her Complaint.

Plaintiff is directed to file a proposed judgment and provide notice of the Court's ruling within five (5) court days.

The minute order is the order of the Court.

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