Judge Linda S. Marks, Case 2022-01076039 2022-10-10 Tentative Ruling

Judge: Linda S. Marks, Case: 2022-01076039, Date: 2022-10-10 Tentative Ruling

Motion for Summary Judgment and/or Adjudication filed by Rushmyfile, Inc., Andrew Adrian Dioli, Bayshore Advisors Inc. and FMC Lending, Inc. on 4/15/22

This Motion is defective for the reasons raised by plaintiff. However, given the limited scope of the issues on this case, none of these defects are fatal to the Motion.

Plaintiff Cordon’s Objections to the Declaration of Andrew Dioli in support of the Motion for Summary Judgment/Adjudication are ruled upon as follows:

The Court declines to rule on Objections 1, 2, 3, 10, because they are deemed not material to the disposition of this Motion. [CCP §437c(q)]

Objections 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, and 14 are OVERRULED.
The Court does not rule on plaintiff’s objections to the form of the Motion. All papers have been considered.

Defendants’ Request for Judicial Notice is DENIED. It is not necessary to request judicial notice of records in the court’s file in a pending action.

Motion for Summary Judgment:

First, the Motion for Summary Adjudication is defective. When summary adjudication is requested, the language of the Notice as to each issue must be repeated verbatim in the Separate Statement as required by CRC Rule 3.1350(b). Even if defendants’ statement that it wants summary adjudication on each Cause of Acton (COA) is considered as a request for summary adjudication, the failure to repeat even this statement verbatim the Separate Statement precludes summary adjudication. Therefore, this Motion is treated as one for Summary Judgment only.

Defendants have not met their burden under CCP 437c(p)(2) on the 1^st cause of action for breach of 15 U.S.C. 1639, et seq., “TILA.” TILA applies only to loans for the purchase of residential property. The one undisputed fact in this case is that the loan was taken for the refinance of a residential property. Defendants contend plaintiff said the loan was for a business property, not subject to TILA. Why that happened is disputed. Defendants contend they were intentionally misled by plaintiff into believing that the loan was for a business property. Plaintiff says not so. This dispute cannot be resolved by summary judgment, [See Defendants’ Separate Statement of Undisputed Material Facts 19 and 20, and evidence in Opposition thereto, and Plaintiff’s Statement of Additional Material Facts 58 -61].

Tentative Ruling: The Motion for Summary Judgment is DENIED.

Moving party is to give notice.