Judge: Lee W. Tsao, Case: 20NWCV00181, Date: 2023-01-31 Tentative Ruling


Case Number: 20NWCV00181    Hearing Date: January 31, 2023    Dept: C

NORWICH v. REDIGER INVESTMENT MORTGAGE FUND, et al.

CASE NO.:  20NWCV00181

HEARING:   1/31/23 @ 1:30 PM

 

#7

TENTATIVE ORDER

 

Cross-Complainant Rediger Investment Mortgage Fund’s motion for summary adjudication is DENIED.

 

Opposing Party to give NOTICE.

 

 

Cross-Complainant Rediger Investment Mortgage Fund (“Rediger”) moves for summary adjudication of the 3rd and 4th causes of action alleged in its Cross-Complaint pursuant to CCP § 437c. 

 

OBJECTIONS

 

Rediger’s objections to the request for judicial notice, and Norwich’s declaration are overruled.

 

PLEADINGS

 

The operative Third Amended Complaint (“TAC”), filed by Plaintiff Peter Norwich, alleges that Norwich has been the owner of the property and remained in possession since he purchased the property in February 2006.  The TAC alleges that Defendants are claiming title pursuant to a void deed because Plaintiff did not obtain a loan in the amount of $650,000 that was secured by the property.  Instead, Defendants Gonzalez, Acevedo, and Peralta opened Peter T. Norwich LLC to improperly obtain the loan.  Based thereon, the TAC asserts causes of action for:

 

1.    Quiet Title

2.    Cancellation of Instrument

3.    Declaratory Relief

4.    Slander of Title

5.    Negligence

6.    Fraud and Deceit

7.    Aiding and Abetting in Commission of a Tort

 

Rediger filed a Cross-Complaint, asserting causes of action for:

 

1.    Declaratory Relief

2.    Quiet Title

3.    Imposition of Equitable Lien

4.    Foreclosure of Equitable Lien

5.    Equitable Indemnity

6.    Contribution

7.    Fraud/Intentional Misrepresentation

8.    Negligent Misrepresentation

 

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).)

 

ISSUES 1-2

 

Rediger seeks summary adjudication of the 3rd cause of action for Imposition of Equitable Lien and the 4th cause of action for Foreclosure of Equitable Lien because Rediger’s loan proceeds were used to pay off three loans obtained by Norwich that were all secured by the subject property.  Accordingly, “if the jury or Court finds that the Rediger Deed of Trust is unenforceable at trial, then Rediger is entitled to an equitable lien in the amount of $605,062.46 together with interest at the legal rate from November 7, 2019, to the date of sale herein, for all the loans, liens and taxes Rediger paid off for the benefit of Norwich and the Property” (Notice, 1:22-26) and “if Rediger is not permitted to foreclose on its equitable lien, then Norwich would be unjustly enriched.”  (Id., 2:4-6.)

 

“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).)

 

“’Cause of action’ differs from ‘remedy,’ which is the means by which the
action or the corresponding obligation is effectuated, and from the ‘relief,’ which is the result obtained through the remedy. The gravamen, or essential nature of a cause of action, is determined by the primary right alleged to have been violated, not by the remedy sought. . . . “A plaintiff may be entitled to several species of remedy for the enforcement of a single cause of action. The availability of alternative remedies does not mean there is more than one cause of action. Violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and relief is not to be confounded with the cause of action, one not being determinative of the other.”
(1A Cal.Jur.3d (2022) “Actions” § 71, pp. 129-130.)

 

Rediger seeks summary adjudication of the Imposition and Foreclosure of Equitable Lien, which are equitable remedies, not distinct causes of action. 

 

An equitable lien is an “equitable remedy.”  (Farmers Ins. Exchange v. Smith (1999) 71 Cal. App. 4th 660, 671; see also County of Los Angeles v. Constr. Laborers Trust Funds for S. Cal. Admin. Co. (2006) 137 Cal. App. 4th 410, 416 - “An equitable lien is a restitutionary remedy given by a court of equity.”)  Further, foreclosure of a lien is a remedy available in equity.  (30 Cal.Jur.3d (2021) “Equity” § 61, p. 664 & fn. 8; 5 Miller & Starr Cal Real Estate (4th ed. 2022 Update) p. 13-602: “H. Foreclosure [next line] 1. Foreclosure as a remedy”; p. 13-608: “§ 13.155 Choice of Remedies; judicial or nonjudicial foreclosure”.)

 

If a pleading is deficient, a motion for summary judgment or summary adjudication may be treated as a motion for judgment on the pleadings because it necessarily includes a test of the sufficiency of the pleading.  (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.)  Here, Rediger’s Cross-Complaint labeled equitable remedies as separate “causes of action,” even though they do not allege the invasion of a primary right.  Therefore, the 3rd and 4th causes of action do not state facts sufficient to constitute a cause of action. 

 

Further, “[a]n order granting summary adjudication "to the extent" a cause of action rests on this or that premise is invalid unless the matter thus adjudicated is properly viewed as a distinct "cause of action" for purposes of the provision thus cited. If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”  (McCaskey v California State Auto. Ass'n (2010) 189 Cal.App.4th 947, 975.)

 

“A court may not issue rulings on matters that are not ripe for review.”  (San Bernardino Public Employees Ass’n v. City of Fontana (1998) 67 Cal.App4th 1215, 1226.)   “A ripeness inquiry involves a two-step analysis: First, whether the issue is appropriate for immediate judicial resolution; and second, whether the complaining party will suffer a hardship from a refusal to entertain its legal challenge.  Under the first test, “‘courts will decline to adjudicate a dispute if “the abstract posture of [the] proceeding makes it difficult to evaluate … the issues”, if the court is asked to speculate on the resolution of hypothetical situations, or if the case presents a “contrived inquiry.”  Under the second test, courts generally will not consider issues based on speculative future harm.  This is particularly true where the complaining party will have the opportunity to pursue appropriate legal remedies should the anticipated harm ever materialize.”  (Metropolitan Water Dist. of Southern California v. Winograd (2018) 24 Cal.App.5th 881, 892–893 [internal citations omitted.].)

 

Here, Rediger seeks adjudication of issues “in the event” or “if the jury or Court finds” that the deed of trust is unenforceable.  (Motion, 1:10-14, 1:17, 1:22-26; 5:25-27.)  Rediger’s motion rests on the premise that the jury or court finds the deed of trust is unenforceable.  Such a request upon summary adjudication is improper and speculative. 

 

Based on the foregoing reasons, the motion for summary adjudication is DENIED.