Judge: Michael E. Whitaker, Case: 22SMCV00237, Date: 2023-08-15 Tentative Ruling
Case Number: 22SMCV00237 Hearing Date: August 15, 2023 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
August
15, 2023 |
|
CASE NUMBER |
22SMCV00237 |
|
MOTION |
Motion
for Summary Judgment |
|
MOVING PARTY |
Plaintiff
Bank of America, N.A. |
|
OPPOSING PARTIES |
Defendants
Paul Guez and Elizabeth Strauss Guez |
PLAINTIFF’S MOVING PAPERS:
DEFENDANTS’ OPPOSITION PAPERS:
PLAINTIFF’S REPLY PAPERS:
BACKGROUND
Plaintiff Bank of America, N.A. (“Plaintiff”) sued Defendant Paul Guez
and Elizabeth Strauss Guez (collectively, “Defendants”), alleging Defendants
breached a mortgage loan agreement they entered into with Plaintiff’s
predecessor-in-interest, LaSalle Bank Midwest, N.A. (hereinafter, “LaSalle”).
Plaintiff moves for summary judgment on its single cause of action for
breach of contract, seeking $450,214.50 in damages. Defendants have opposed motion and Plaintiff
has replied.
LEGAL STANDARD – SUMMARY JUDGMENT
“[T]he party moving for
summary judgment bears the burden of persuasion that there is no triable issue
of material fact and that he is entitled to judgment as a matter of law[.]
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.”
¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850
(hereafter Aguilar).) ¿“[T]he party moving 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; if he carries his burden of production,
he causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a
triable issue of material fact.” ¿(Ibid.; Smith v. Wells Fargo Bank,
N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar
apply to summary adjudication motions].)
Further, “the trial court
may not weigh the evidence in the manner of a factfinder to determine whose
version is more likely true. Nor may the
trial court grant summary judgment based on the court's evaluation of
credibility.” (Aguilar, supra, 25
Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department
of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for
summary judgment or summary adjudication may not weigh the evidence but must
instead view it in the light most favorable to the opposing party and draw all
reasonable inferences in favor of that party”].)
REQUESTS FOR JUDICIAL NOTICE
A motion for summary judgment
or summary adjudication may be supported by matters of which judicial notice
may be taken. (Code Civ. Proc., § 437c,
subd. (b)(1).)
In relevant part, Evidence
Code section 452, subdivision (h) allows for judicial notice of “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” For example,
judicial notice of recorded documents is proper because “[t]he official act of
recordation and the common use of a notary public in the execution of such
documents assure their reliability, and the maintenance of the documents in the
recorder’s office makes their existence and text capable of ready confirmation,
thereby placing such documents beyond reasonable dispute.” (Fontenot v. Wells Fargo Bank, N.A.
(2011) 198 Cal.App.4th 256, 264-65.)
However, while a court may take judicial notice of a document under
section 452, subdivision (h), it may not take judicial notice of factual
matters stated therein. (Poseidon
Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th
1106, 1117.)
Plaintiff requests the Court
to take Judicial Notice of three documents: (1) Robert deV. Frierson,
Deputy Secretary of the Board of Governors of the Federal Reserve System, Order
Approving the Acquisition of a Bank Holding Company (Sept. 14, 2007), indicating conditional approval to allow
Bank of America’s acquisition of LaSalle Bank Corporation; (2) Institution
Details for LaSalle Bank Midwest National Association, obtained from the FDIC’s
website; and (3) the case CFS, LLC v. Bank of America (Ind. Ct.App.
2012) 962 N.E. 2d 151.
Plaintiff has proffered these
documents as proof that it acquired LaSalle and LaSalle’s assets. Defendants dispute that Plaintiff is the
successor in interest to the subject loan.
Therefore, the Court cannot find that such documents and their contents “are
not reasonably subject to dispute.” Moreover,
the proffered documents are not recorded and do not contain any other indicia
of reliability.
The first document is
unsigned, and as such, the Court declines to take judicial notice.
The second document is from
the FDIC’s website and indicates that Plaintiff acquired LaSalle on a date that
has been cut-off from view. But the Court
declines to take judicial notice that Plaintiff acquired LaSalle on the basis
of the second document.
The third document is an appellate opinion from the State
of Indiana and subject to judicial notice under Evidence Code section 452,
subdivision (a). “However, while courts are free to take
judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files. Courts may not take judicial
notice of allegations in affidavits, declarations and probation reports in
court records because such matters are reasonably subject to dispute and
therefore require formal proof.” (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882 [cleaned up].) Therefore
the Court takes judicial notice of the existence of CFS, LLC v. Bank of
America (Ind. Ct. App. 2012) 962 N.E.2d 151, but declines to take judicial
notice of the contents.
Therefore, Plaintiff’s Request
for Judicial Notice is denied in its entirety.
Defendants
request that the Court to take judicial notice of two documents: (A) the
Confirmation Deed for Public Trustee’s Foreclosure Sale No. 2012-03, filed as
document number 423331; and (B) “that the publicly traded price of the stock of
Blue Holdings, Inc. on June 27, 2008 was $0.36 per share.” Defendants have attached as Exhibit B to
their request for judicial notice what appears to be a screenshot from the
Nasdaq website, showing the opening and closing price per share of Blue
Holdings Inc. on July 3, 2008.
As
discussed above, judicial notice of recorded documents is proper. Therefore the Court takes judicial notice of
Exhibit A, the Confirmation Deed.
However,
there are issues with Exhibit B. First,
there is no foundation explaining what the document is, where it came from, or
why it is reliable. Second, the document
on its face purports to list the price of Blue Holdings stock on July 3, 2008,
not June 27, 2008. Therefore, the Court
declines to take judicial notice of Exhibit B.
Therefore,
the Court grants Defendants’ request for judicial notice of Exhibit A, but denies
Defendants’ request as to Exhibit B.
EVIDENTIARY OBJECTIONS
With respect to Defendants’
evidentiary objections, the Court rules as follows:
·
1, 2, 3,
4, 5, 6, 7, 8, 9, 10 - Sustained
Foremost, the objections are sustained
on the basis that the declaration of Kathlena Edwards (“Edwards”) lacks
foundation, calling into question her competency (lack of personal knowledge)
to attest to the facts set forth in the declaration. In particular, Edwards states she is “an
officer of the bank.” That statement
begs the questions: what type of
officer? what is her job title? what are her job duties? Without
more information about her job title and attendant duties, the statement, “because
of the scope of my job responsibilities, I have personal knowledge of the
manner and method by which Plaintiff maintains its normal business books and
records . . . ,” rings hollow.
Because
the Court denied Plaintiff’s Request for Judicial Notice in its entirety, the
Court declines to rule on Defendants’ remaining evidentiary objections to the
Request for Judicial Notice. “In
granting or denying a motion for summary judgment or summary adjudication, the
court need rule only on those objections to evidence that it deems material to
its disposition of the motion. Objections to evidence that are not ruled on for
purposes of the motion shall be preserved for appellate review.” (Code Civ.
Proc., § 437c, subd. (q).)
DISCUSSION
“A
plaintiff or cross-complainant has met his or her 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. Once
the plaintiff or cross-complainant has met that burden, the burden shifts to
the defendant or cross-defendant to show that a triable issue of one or more
material facts exists as to the cause of action or a defense thereto. The
defendant or cross-defendant shall not rely upon the allegations or denials of
its pleadings to show that a triable issue of material fact exists but,
instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1); see,
e.g., Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661[“It is
not until the defendant meets this burden that the burden of production shifts
to the plaintiff to show that a triable issue of one or more material facts
exists as to the defense”].)
Furthermore, “[t]he
requirement of a separate statement from the moving party and a responding
statement from the party opposing summary judgment serves two functions: to
give the parties notice of the material facts at issue in the motion and to
permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm
Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) Stated in a different way, “[t]he purpose of
a summary judgment proceeding is to permit a party to show that material
factual claims arising from the pleadings need not be tried because they are
not in dispute. The purpose is carried out in section 437c, subdivision (b)(1)
by requiring the moving party to include in the moving papers a separate
statement setting forth plainly and concisely all material facts which the
moving party contends are undisputed together with a reference to the
supporting evidence. The complaint
measures the materiality of the facts tendered in a defendant's challenge to
the plaintiff's cause of action, hence the moving party's separate statement
must address the material facts set forth in the complaint.” (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 168 [cleaned up].) And “[w]here
the evidence presented by defendant does not support judgment in his favor, the
motion must be denied without looking at the opposing evidence, if any,
submitted by plaintiff.” (Hawkins v.
Wilton (2006) 144 Cal.App.4th 936, 940.)
Plaintiff
contends there are six (6) Undisputed Material Facts which support its
arguments that it can prevail on the breach of contract cause of action as a
matter of law. To support its arguments,
Plaintiff advances in pertinent part the Declaration of Kathlena Edwards and the
Request for Judicial Notice. However,
based on the Court’s rulings on Plaintiff’s Request for Judicial Notice and
Defendant’s evidentiary objections, the Edwards declaration and the documents attendant
to the Request for Judicial Notice, have no evidentiary value. As such, all of Plaintiff’s Undisputed
Material Facts are without evidentiary support.
In the absence of such material facts, Plaintiff will not be able to
persuade the Court that there are no triable issues of material fact concerning
Plaintiff’s claim for breach of contract.
In
short, because Plaintiff fails to support all of the facts it claims are
material and undisputed with sufficient, competent evidence, the Court finds
that Plaintiff has not met its initial burdens of production and
persuasion. Consequently, the Court
determines that the burden of production does not shift to Defendants to
produce evidence that raises triable issues of material fact.
CONCLUSION AND ORDER
Having found that Plaintiff
has not met its initial burdens of production and persuasion, the Court denies
Plaintiff’s motion for summary judgment.
Plaintiff is not entitled to judgment as a matter of law.
The Clerk of the Court shall
provide notice of the Court’s ruling.
DATED:
August 15, 2023 ___________________________
Michael E. Whitaker
Judge
of the Superior Court