Judge Linda S. Marks, Case 2019-01076039 2022-11-28 Tentative Ruling

Judge: Linda S. Marks, Case: 2019-01076039, Date: 2022-11-28 Tentative Ruling

Motion for Summary Judgment and/or Adjudication filed by AHL Funding, and Charles B. McElwee on 8/31/22

Plaintiff’s objections to the motion of Defendant: Objections 1, 2, 3, 4, 5 and 6 are OVERRULED. Objections 7 and 8 are SUSTAINED.

Defendants’ Objections to the Opposition of Declaration Plaintiff Lucila Cordon: The Court declines to rule on Objections 1 – 15, because it deems them not material to the disposition of this Motion. [CCP §437c(q)] The Objections 1-71 to the Declaration of Sanford Park is SUSTAINED on all grounds stated. Further, the Court notes that Attorney Park’s Declaration is not testimony about facts within his personal knowledge. It is argument, which is not permitted in a declaration.

First Cause of Action for breach of 15 U.S.C. 1639, et seq:

As the defendants moving for summary judgment on Cordon’s causes of action, AHL/McElwee have the initial burden of persuasion under CCP 437c(p)(2). They must either point to Cordon’s factually devoid discovery responses or show she cannot make out an essential element of her COAs. Once defendants meet this burden, the burden shifts to Cordon to offer sufficient evidence from which a reasonable trier of fact could find in her favor. [See, Saelzler v. Advanced Group (2001) 25 Cal.4^th 763 and Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826]. This burden applies to the 1^st cause of action for breach of 15 U.S.C. 1639, et seq., “TILA.” As applicable to this matter, the statute does not only apply to creditors. It also applies to mortgage origination and residential loans. [15 USC 1602 (dd)(2)(A) and (B); CFR §1026.36] Here, the Defendants did not address this section, despite evidence that they acted as a mortgage originator. As such, they have not established that plaintiff cannot prove the elements of her 1^st COA.

Even if defendants had met their burden, plaintiff has shown triable issues of material fact. [Plaintiff’s Additional Material Facts [“PSSF”] No, 9, 12 , 13, 83-86, 94, 96 Plaintiff’s Additional Material Facts [“PSSF”] No, 9, 12 , 13, 83-86, 94 and 96]

Tentative Ruling: Defendants’ Motion for Summary Adjudication of the First Cause of Action is DENIED.

Second, Third, Fourth and Fifth Causes of Action:

The argument concerning each of these causes of action is that defendants did not speak with or act for plaintiff Cordon. Even accepting the truth of that statement, it does not absolve defendants from fraud or breach, fiduciary duty, or unfair business practices taken by their agents. Defendants argue Moss and Carrera were at the most independent contractors. Defendants cannot eschew liability on this basis. Independent contractors can be agents of a principal. The latter may be liable for their torts. [See 4 Witkin, Summary of CA Law (11^th Ed. 2002) Agency, 203] Defendants have not proven the scope of Moss’s and Carrasco’s agency. From the evidence, it appears to the Court that defendants run their business using as many as 70 “independent contractors.” While defendants are free to use any business model they choose, it has not been established whether Moss and Carrasco were not agents of defendants Cordon’s transaction. Therefore, they have not shown that Corden cannot prove one or more of the required elements of the 2^nd through 6^th COAs.

Tentative Ruling: Summary Adjudication of the 2^nd, 3^rd, 4^th, 5^th, and 6^th causes of action is DENIED.

Moving party to give notice.