Judge Olivia Rosales, Case 20NWCV00686 2022-09-27 Tentative Ruling

Judge: Olivia Rosales, Case: 20NWCV00686, Date: 2022-09-27 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 20NWCV00686 Hearing Date: September 27, 2022 Dept: SEC

SUN WEST MORTGAGE COMPANY, INC. v. STATES MORTGAGE COMPANY, INC.

CASE NO.: 20NWCV00686

HEARING: 9/27/22 @ 9:30 AM

TENTATIVE RULING

Defendant States Mortgage Company, Inc.’s motion for summary adjudication of Issue 1 is GRANTED as to the 2^nd and 4^th – 5^th causes of action, and DENIED as to the 6^th – 7^th causes of action; summary adjudication of Issue 2 is GRANTED; summary adjudication of Issues 3-6 is DENIED. As triable issues remain, motion for summary judgment is DENIED.

Moving Party to give NOTICE.

Defendant States Mortgage Company, Inc. moves for summary judgment and/or adjudication pursuant to CCP § 437c.

Evidentiary Rulings

Defendant’s RJN is granted as to the court-filed documents contained in RJN 1-6. Although the court may take judicial notice of the documents filed, the court declines to take judicial notice of the truth of the matters contained therein.

Defendant’s RJN is denied as to RJN 7-8. The Olberding and Benetts declarations were not attached as RJN 7-8.

Complaint

Plaintiff Sun West Mortgage Company, Inc. alleges that Defendant States Mortgage Company, Inc. breached a series of agreements regarding selling and brokering of mortgage loans. Based thereon, the Complaint asserts causes of action for:

1. Breach of Contract

2. Open Book Account

3. Account Stated

4. Reasonable Value

5. Common Counts

6. Conversion

7. Unjust Enrichment

Standard

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP § 437c(p)(2).)

MSJ/MSA

Defendant contends it is entitled to summary judgment on two alternative grounds: 1) evidence preclusion based on the Bill of Particulars; and 2) Plaintiff waived its right to seek fees or damages. Alternatively, Defendant seeks summary adjudication of the following issues: 1) Open Book Account, Reasonable Value, Common Counts, Conversion, and Unjust Enrichment are equitable claims which are not available when seeking to enforce an express contract; 2) Common Counts is not a cause of action; 3) failure of damages; 4) statute of limitations; 5) statute of limitations; 6) statute of limitations.'' (7/14/22 Notice.)

Bill of Particulars

Defendant contends that it is entitled to summary judgment because the court previously ordered that Plaintiff was precluded from introducing evidence of the account at trial.

Defendant's Notice of Motion to Preclude Introduction of Evidence of Account at Trial was directed at “the common count of Open Book Account in the Second Cause of Action.” (4/13/21 Notice, 2:2-4.) Plaintiff’s Opposition indicated that the issue would be moot because Plaintiff was willing to amend the Complaint to remove the Open Book Account and Account Stated causes of action. (Notably, the opposition did not request an extension or other relief based on inadvertence.) On May 19, 2021, at the hearing on this motion, the court noted that Plaintiff had not yet filed an amended pleading. Therefore, the motion was granted, and Plaintiff was precluded “from introducing evidence of the account at trial.”

According to Defendant, because the “account” relates to all of Plaintiff’s claims, Defendant is entitled to summary judgment. The court disagrees. Defendant’s motion was directed specifically to the 2^nd cause of action only and this court’s ruling granted the relief that Defendant requested as framed by Plaintiff’s notice.

Accordingly, the motion for summary judgment as to the entire complaint based on the court’s May 19, 2021 Order is DENIED.

Waiver

Defendant contends that Plaintiff waived its right to seek fees or damages, citing Defense Separate Statement (“DSS”) 18, which references RJN 7-8. However, RJN 7-8 were not attached to the motion.

Defendant requests relief based on CCP § 473 for its failure to include the exhibits. However, this court has no jurisdiction to extend the statutory 75-day notice period.

CCP § 437c(a)(2) provides that a party moving for summary judgment or summary adjudication “shall” serve notice of the motion “and supporting papers” “on all other parties on all other parties to the action at least 75 days before the time appointed for hearing.” This language is mandatory and the court has no discretion to shorten the time. (Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4^th 582, 595-596.) Nor can a trial court continue the hearing on the motion in order to achieve the required 75-day notice. (Robinson v. Woods (2008) 168 Cal.App.4^th 1258.)

Accordingly, summary judgment based on waiver is DENIED.

MSA Issue 1

Defendant contends that the Open Book Account, Reasonable Value, Common Counts, Conversion, and Unjust Enrichment causes of action are equitable claims which are not available when seeking to enforce an express contract, citing the Complaint filed in this action. (DSS 2; Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388 – “Although a plaintiff may plead inconsistent claims that allege both the existence of an enforceable agreement and the absence of an enforceable agreement, that is not what occurred here. Instead, plaintiffs' breach of contract claim pleaded the existence of an enforceable agreement and their unjust enrichment claim did not deny the existence or enforceability of that agreement. Plaintiffs are therefore precluded from asserting a quasi-contract claim under the theory of unjust enrichment.”)

Here, Plaintiff’s 2^nd, and 4^th – 5^th causes of action (Open Book Account, Reasonable Value, Common Counts) are quasi-contract claims that are based on the existence of an enforceable agreement. Plaintiff has not pleaded the denial of the existence of the agreement to support the quasi-contract claims. (DSS 2, RJN, Ex. 1.) [The court notes that although Defendant included the 6^th – 7^th causes of action for Conversion and Unjust Enrichment, these claims are not quasi-contract claims.]

In opposition to DSS 2, Plaintiff simply “disputes” DSS 2 by citing its own complaint. However, Plaintiff may not rely on its own pleadings as evidence to oppose a motion for summary judgment/adjudication. (College Hosp., Inc. v. Sup.Ct. (1994) 89 Cal.4^th 704, 720.) There is no evidence before the court that Plaintiff is denying the existence of the contract to support the Open Book Account, Reasonable Value, and Common Counts claims.

Accordingly, summary adjudication of Issue 1 is GRANTED as to the 2^nd and 4^th – 5^th causes of action only. Summary adjudication of Issue 1 is DENIED as to the 6^th – 7^th causes of action.

MSA Issue 2

Defendant contends that the 5^th cause of action for Common Counts is not a cause of action. In opposition, Plaintiff contends that the complaint may state multiple legal theories upon which recovery might be predicated for the claim of relief.

If a complaint is deficient, an MSJ/MSA may be treated as a motion for judgment on the pleadings because it “necessarily includes a test of the sufficiency of the complaint. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4^th 1110, 1118.)

Here, Common Counts is not a cause of action. Further, Plaintiff’s 5^th cause of action is identical to the 2^nd cause of action for Account Stated. This defect is unamendable, and therefore, leave to amend the complaint is denied.

Accordingly, summary adjudication of Issue 2 is GRANTED as to the 5^th cause of action.

MSA Issues 3 – 6

Issues 3-6 seek adjudication of various “loans” contained in each cause of action. Summary adjudication of “legal issues or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty” requires a joint stipulation between the parties, and prior court approval. (CCP § 437c(t).) Piecemeal adjudication of the separate “loans” does not completely dispose of the claims, and is therefore, a defective motion.

Further, these issues reference defense Exhibits 6-10, which were not attached to the motion.

Defendant requests relief based on CCP § 473 for its failure to include the exhibits. However, this court has no jurisdiction to extend the statutory 75-day notice period.

Accordingly, summary adjudication of Issues 3-6 is DENIED.