Judge: Melissa R. Mccormick, Case: Hildebrandt v. Gomes, Date: 2022-10-20 Tentative Ruling

Plaintiff Vernon Hildebrandt’s Motion for Summary Judgment

Plaintiff Vernon Hildebrandt moves for summary judgment on his complaint against defendant Cathy Gomes.  For the following reasons, plaintiff’s motion is granted.

“A plaintiff seeking summary judgment bears the initial burden to prove each element of his or her causes of action.”  People ex rel. City of Dana Point v. Holistic Health (2013) 213 Cal.App.4th 1016, 1024.  A plaintiff seeking summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.  Cal. Civ. Proc. Code § 437c(p)(1).  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 the cause of action or a defense thereto.  Id.

Plaintiff alleges one cause of action against defendant for breach of contract.  Plaintiff alleges defendant failed to pay $187,000 due under a promissory note.  Defendant contends the note has been paid by means of an agreement between plaintiff and defendant’s son.

The elements of a breach of contract cause of action are:  (1) the contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) resulting damages to the plaintiff.  Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.

Plaintiff carried his initial burden of proving each element of his breach of contract cause of action.  See Plaintiff’s Separate Statement Nos. 3-19 (and evidence cited therein). 

Defendant has not carried her shifted burden of showing that a triable issue of one or more material facts exists as to plaintiff’s cause of action.  Defendant does not dispute that on or about September 21, 2017 defendant executed the promissory note at issue, and that defendant agreed to pay plaintiff $187,000.  Defendant’s Responsive Separate Statement Nos. 3, 6, 10.  Defendant has not presented any evidence disputing that at or about the same time defendant executed the note, plaintiff placed $187,509.67 into Eminence Escrow Inc.’s Escrow Account Number 178778-CS as part of a refinance of defendant’s mortgage loan on the real property located at 19350 Easy Street, Yorba Linda, California 92886.  Plaintiff’s Separate Statement No. 5; see also Defendant’s Responsive Separate Statement No. 5; David Gomes Decl. Ex. B; Cathy Gomes Decl. ¶ 5. 

Defendant has submitted evidence of a December 14, 2019 email from plaintiff to defendant’s son, David Gomes.  David Gomes Decl. ¶ 6.  The email states, “[t]his is the money that you have received,” and attaches a spreadsheet of payments with the date, description, and amount itemized.  David Gomes Decl. ¶ 6 & Ex. A.  The spreadsheet includes a September 25, 2017 entry described as “Yorba Linda House Payment Yorbalinda [sic] house payoff” in the amount $187,529.67.  Id.; see also David Gomes Decl. Ex. B (reflecting plaintiff paid $187,509.67 to Eminence Escrow Inc.).

Defendant contends payment on the note was consideration for plaintiff’s purchase of an interest in David Gomes’s business.  Defendant has not submitted admissible evidence demonstrating defendant’s promise to pay the loan secured by the note was discharged as credit or consideration for plaintiff’s purchase of an interest in David Gomes’s business.  In sum, the admissible evidence does not demonstrate a triable issue of fact regarding defendant’s claim she was excused from making payments on the note and/or that the note was extinguished.

Plaintiff’s evidentiary objections numbers 2, 5, and 10 are sustained.  Plaintiff’s remaining evidentiary objections are overruled.

Defendant’s request for judicial notice is granted in part.  A court may take judicial notice of the existence of a document in a court file, but a court may not take judicial notice of the truth of hearsay statements in decisions and court files.  Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658; see also Sosinky v. Grant (1992) 6 Cal.App.4th 1548, 1567 (“it was proper to take judicial notice that civil first amended complaint made certain allegations, so long as judicial notice of the truth of those allegations was not taken”).

The January 17, 2023 trial date is vacated.

Plaintiff to give notice and to submit a proposed judgment by October 31, 2022.