Judge Olivia Rosales, Case 21NWCV00742 2022-12-15 Tentative Ruling

Judge: Olivia Rosales, Case: 21NWCV00742, Date: 2022-12-15 Tentative Ruling

Case Number: 21NWCV00742 Hearing Date: December 15, 2022 Dept: SEC

AVILA v. ARROYO

CASE NO.: 21NWCV00742

HEARING: 12/15/22

TENTATIVE ORDER

Plaintiff MODESTO AVILA’s Motion for Summary Judgment is GRANTED. The alternative Motion for Summary Adjudication is MOOT.

Moving Party to give Notice.

Plaintiff MODESTO AVILA’s Requests for Judicial Notice are GRANTED. (Cal. Ev. Code §452.)

The Court has reviewed and considered all of Defendants’ Oppositions filed prior to the hearing date—including the untimely Opposition filed on December 5, 2022. Oppositions were to be filed and served by no later than December 1, 2022. (CCP §437c(b)(2).)

This breach of contract was filed by Plaintiff MODESTO AVILA (“Plaintiff”) on November 9, 2021. Plaintiff’s Complaint alleges the following relevant facts: “The real property which is the subject of this action (the ‘Subject Property’) is a single-family, owner-occupied/primary residence house located at 14517 WOODRUFF AVE. BELLFLOWER, CALIFORNIA 90706….” (Complaint ¶8.) “On or about September 21, 2021, Defendants ARROYOS as the Sellers, and Plaintiff as the Buyer, entered into a binding contract for the purchase and sale of the Subject Property for the purchase price of $898,000.00.” (Complaint ¶10.) “Pursuant to the terms of the Purchase Agreement, on September 27, 2021 and October 8, 2021, Plaintiff deposited the required Earnest Money Deposits with PURE LOGIC ESCROW, INC. (hereinafter ‘PLE’).” (Complaint ¶12.) “Thereafter Plaintiff, as Buyer, has performed its obligations under the Purchase Agreement, including having the required Appraisal conducted for the Subject Property on October 7, 2021 and removing all required contingencies on the Buyer’s side. [¶] Despite Plaintiff’s full performance thereunder, less than one week before the scheduled closing, the ARROYOS through their agents, communicated a desire to cancel the transaction entirely. Plaintiff has rejected the proposed cancellation and authorized his agent to send a Notice to Seller to Perform to the ARROYOS. [¶] Plaintiff’s informal efforts to resolve the situation with Defendants regarding completing the sale of the Subject Property have to date proven fruitless….” (Complaint ¶¶13-15.)

Plaintiff’s Complaint asserts the following causes of action: (1) Specific Performance; (2) Breach of Contract; and (3) Breach of Fiduciary Duty.

Plaintiff moves for summary judgment, or alternatively summary adjudication of the first and second causes of action against Defendants JULIO ARROYO and MARIA ARROYO individually and as TRUSTEES OF THE JULIO ARROYO AND MARIA ARROYO REVOCABLE LIVING TRUST DATED DECEMBER 18, 2019 (collectively “Arroyos”).

The third cause of action for Breach of Fiduciary Duty is not asserted against the Arroyos.

First and Second Causes of Action – Specific Performance and Breach of Contract

To plead a breach of contract, the Plaintiff must allege: (1) the existence of a contract; (2) Plaintiff’s performance or excuse for non-performance; (3) Defendant’s breach; and (4) resulting damage to Plaintiff. (Lortz v. Connell (1969) 273 Cal.App.3d 286, 290.) When a plaintiff’s claims for specific performance and breach of contract are predicated upon the same breach of contract claim, they may nevertheless plead them as separate causes of action because a claim for specific performance sounds in equity and is to be tried to the court, while a claim for breach of contract sounds in law and may be tried by a jury. (See Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 49.) In addition to the breach of contract, a party seeking to specifically enforce a contract must demonstrate: “(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract.” (Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575.)

Plaintiff argues there are no triable issues of material facts that the Arroyos can raise to defeat summary judgment.

In Opposition, the Arroyos argue that: (1) the Arroyos did not understand what they were signing because they are non-English/Spanish speakers and the entire Agreement was written in English; and (2) Plaintiff failed to comply with Cal. Civ. Code 1632.

The Arroyos did not file/serve/lodge with the Court a Separate Statement.

The following facts are undisputed:

· The Agreement describes the Subject Property, identifies that Plaintiff as Buyer and the Arroyos as Sellers throughout, outlines the payment terms, escrow instructions and rights and the obligations of each of the parties. (SSMF. No. 4.)

· Both the Plaintiff and the Arroyos were represented by real estate professions in this transaction, specifically Defendants NUEVA REAL ESTATE, MARIO ARROYO, and ELITE PROPERTY BROKERS. (SSMF. No. 5.)

· Plaintiff fully performed his obligations under the Purchase Agreement (SSMF No. 8.)

· Despite Plaintiff’s full performance, less than one week before the scheduled closing, the Defendants communicated a desire to cancel the transaction. (SSMF. No. 9.)

· To date, the Arroyos continue to refuse to perform under the Purchase Agreement. (SSMF No. 11.)

· Plaintiff remains ready, willing, and able to complete the transaction including paying the full purchase price as agreed by him last year. (SSMF No. 13.)

The requirement of furnishing a Spanish translation of a contract is codified in Civil Code §1632. However, Civil Code §1632 does not apply to home mortgage loans, subject to certain exceptions—none of which apply here. (Cal. Civ. Code §1632(b)(2).) (Civil Code §1632(b)(2) does not apply to loans secured by real property—Plaintiff’s loan is secured by real property.)

In their Declarations submitted in Opposition, the Arroyos state that they did not fully understand the terms of the Purchase Agreement, and only signed because they were instructed to do so by their real estate agent(s). (Julio and Maria Arroyo Decl(s)., ¶¶5-6.) However, in response to Request for Admission No. 7, the Arroyos’ answered “Admit” to the following Request: “Admit that at the time YOU… signed the document… YOU intended to sell the SUBJECT PREMISES… to Plaintiff.” (Avila Decl., ¶5, Ex. 7.)

Declarations in opposition to a summary judgment motion may be excluded where it directly contradicts a prior admission by a party. (See D’Amico v. Bd. Of Medical Examiners (1974) 11 Cal.3d 1.)

Here, the Arroyos specifically admit that they intended to sell the Subject Property at the time they signed the Purchase Agreement. This admission directly contradicts the Arroyos’ Declarations in Opposition to the instant Motion The Arroyos’ declarations are insufficient to create a triable issue of material fact. A motion for summary judgment may not be defeated by a self-serving declaration, which contradicts previous discovery responses. (Whitmire v. Ingersoll-Rand Co. (2010) 84 Cal.App.4th 1078, 1084.)

Moreover, as indicated above the Arroyos failed to submit a Separate Statement in conjunction with their Opposition papers. “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement shall also set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion. (emphasis added.)” (CCP §437c(b)(3.)

Where the Arroyos fail to raise a triable issue of material fact, and none of the facts submitted by Plaintiff in his Separate Statement are disputed, summary adjudication of the first and second claims is properly granted. Where no causes of action remain against the Arroyos, summary judgment is GRANTED.