TENTATIVE RULING

Calendar:    5

Date:          11/17/2023 

Case No: 22 GDCV00368 Trial Date: Nov.  27, 2023  

Case Name: Salem v. Axos Financial, Inc. etc, et al.

MOTION FOR SUMMARY JUDGMENT

(Or, in the Alternative, Summary Adjudication)

Moving Party:            Defendant Axos Bank fka BOFI Federal Bank      

Responding Party: Plaintiff Aymen Salem (No Opposition) 

RELIEF REQUESTED:

In the alternative, summary adjudication of each cause of action 

CAUSES OF ACTION: from Complaint   

1) Violation of the California Homeowners Bill of Rights 

2) Wrongful Foreclosure 

3) Promissory Estoppel

4) Injunctive Relief *

*Cause of action dismissed pursuant to a Request for Dismissal with prejudice filed by plaintiff on 07/31/2023 and entered as requested the same date.  

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Ayman M. Salem alleges that plaintiff is the owner of real property in La Canada, and that plaintiff refinanced the original loan used to purchase the subject property when plaintiff borrowed funds from defendant BofI Federal Bank, with the promissory note regarding the loan secured by a deed of trust recorded on February 12, 2015.   Plaintiff alleges that in 2018 defendant Axos Financial, Inc. announced it had re-branded BofI Federal Bank as Axos Bank.   Defendant First American Title Insurance Company became the trustee of the deed of trust pursuant to an Assignment of Deed of Trust recorded in March of 2020.  

On August 12, 2022, the court denied the preliminary injunction, “as plaintiff has failed to establish a likelihood of prevailing on his claims or causes of action in this matter.”   The TRO issued on July 1, 2022 was ordered dissolved.  

On July 31, 2023, plaintiff filed a Request for Dismissal with prejudice of the “4th Cause of action for Injunctive Relief,” which dismissal was entered as requested the same date.  

This motion was originally heard on October 20, 2023.  The court issued its tentative ruling via posting on LACourt.org website.  The minute order indicates:

“The Court has read and considered the Plaintiff's Declaration filed on 10/19/2023 regarding a request for a continuance. The Court grants the continuance over the defendant's objections. No further continuance will be granted for the plaintiff without a doctor's note. Briefing schedule is per statute, and service shall be by email and mail.”

[Minute Order 10/20/2023, p. 1 of 17]. 

ANALYSIS:

Procedural

No Opposition

There has been no timely opposition to the motion filed by plaintiff.  Defendant has confirmed that no timely opposition was served prior to the original hearing date. 

As noted above, despite being permitted the opportunity file and serve timely opposition in connection with the current continued hearing date, no papers have been filed by plaintiff in opposition to or in connection with the continued motion. 

CCP §437c(b)(3) sets forth the specific requirements for opposition papers, including the requirement of the filing of a separate statement of material facts.   This subdivision provides: “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”  The motion is granted on the grounds there has been no separate statement filed. 

Substantive 

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

All Causes of Action

ISSUE NO. 1: PLAINTIFF LACKS STANDING TO ASSERT THE CLAIMS IN THE COMPLAINT BECAUSE THE CLAIMS BELONG TO THE BANKRUPTCY TRUSTEE. UMF Nos. 7, 8 and 22. 

Defendant argues that plaintiff lacks standing to bring this action, as plaintiff is currently in a Chapter 7 bankruptcy so that the claims in this lawsuit are in fact the property of the bankruptcy estate, under the control of the bankruptcy trustee.  [UMF Nos. 7, 8, 22, and evidence cited].   

  Defendant has presented authority under which the Second District determined that a claim for wrongful foreclosure to set aside a foreclosure sale of a debtor’s residence is property of the bankruptcy estate which only the chapter 7 trustee can pursue.  Bostanian v. Liberty Savings Bank, FSB (1997) 52 Cal.App.4th 1075.  The Second District in Bostanian concluded that plaintiffs, a husband and wife, had no standing to pursue the appeal in the action, and granted plaintiffs 30 days in which to secure an abandonment by the trustee of the cause of action in the bankruptcy court.    

“Defendants contend plaintiffs' cause of action is property of the bankruptcy estate which only the chapter 7 trustee has standing to pursue. There is no dispute that as a chapter 11 debtor in possession, Mr. Bostanian had standing to prosecute this action. (§ 1107(a);  Fed. Rules Bankr. Proc., rule 6009 (11 U.S.C.); J & K Painting Co. v. Bradshaw (1996) 45 Cal. App. 4th 1394, 1402, fn. 8 [53 Cal. Rptr. 2d 496];   California Aviation, Inc. v. Leeds (1991) 233 Cal. App. 3d 724, 729 [284 Cal. Rptr. 687].) As our colleague, Associate Justice Ruben Ortega of Division One of this appellate district, explained in California Aviation, Inc. v. Leeds, supra, 233 Cal. App. 3d at page 729: "[It is undisputed the plaintiff] had standing to pursue its [legal malpractice] case . . . as a chapter 11 debtor in possession.'With or without court approval, the trustee or debtor in possession may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal.' ( Fed. Rules Bankr., rule 6009, 11 U.S.C., italics added.)  Chapter 11 debtors in possession have such standing with or without bankruptcy court approval because they retain possession and control of their assets as part of their bankruptcy court-supervised plans to revive their businesses and satisfy their creditors. However, the bankruptcy court supervises the liquidation of failed chapter 7 debtors, who can begin or maintain lawsuits in their own name only with the bankruptcy court's and trustee's approval." (Cf. People v. Kings Point Corp. (1986) 188 Cal. App. 3d 544, 548-549 [233 Cal. Rptr. 227] [applying a contrary rule where a trustee was appointed in a chapter 11 proceeding and assumed all authority in litigation]; and see contra, Tarr v. Merco Construction Engineers, Inc. (1978) 84 Cal. App. 3d 707, 712-713 [148 Cal. Rptr. 813] [holding chapter 11 debtor had no standing to sue].)

However, defendants argue, when the matter was converted to chapter 7, standing to maintain this lawsuit became vested in the bankruptcy trustee. Further, defendants contend, the chapter 7 trustee has not abandoned this cause of action; therefore, the chapter 7 trustee is the only party withstanding to appeal. We agree for the following reasons.

Bostanian, at 1078-1079, italics in original.

The Second District found that in such cases “the debtor must take affirmative steps to comply with section 554 concerning abandonment.  Until the debtor secured an abandonment of the claim, the debtor lacks standing to pursue it.”   Bostanian, at 1083.   

Defendant submits the bankruptcy filings, including the August 24, 2020 bankruptcy petition, and the March 12, 2021 stipulation and order converting the bankruptcy to Chapter 7.  [UMF Nos. 7, 8, 22, Thompson Decl., paras. 18, 19, Exhibits H, I, J] 

Defendant also submits the docket in plaintiff’s August 24, 2020 bankruptcy case, which shows that the matter was converted in February of 2021 to a Chapter 7 case, and is pending, the last activity in which appears to have been an order on a motion to approve a compromise under Rule 9019, with respect to the sale of the estate’s interest in real property in Newport Beach, followed by a substitution of attorney for a creditor, and a notice of error in that substitution of attorney document, dated March 23, 2023. [UMF No. 7, 8, 22, Thompson Decl., paras. 18, 19, Exhibits H, I, J; Pelletier Decl., para. 9, Ex. G].  The docket shows some activity in November of 2021 suggesting that there may have been relief granted from the automatic stay with respect to the subject property in La Canada, or that the trustee proposed to abandon that asset, but the docket is not clear that the asset was in fact abandoned by the trustee, and defendant indicates that the claims in the complaint remain the property of the estate, and that the  bankruptcy remains open.  [See UMF No. 22, and evidence cited; Pelletier Decl., para. 9, Ex. G.]     

This showing is sufficient to establish that plaintiff lacks standing to pursue the claims in this matter, shifting the burden to plaintiff to establish that plaintiff does not lack standing as a matter of law, or to raise triable issues of material fact on the issue.  Plaintiff has failed to oppose the motion, so does not address this argument, suggesting plaintiff is unable to establish standing with respect to the bankruptcy estate assets.  The court file shows that this issue has been pointed out to plaintiff at least twice previously in this litigation, and plaintiff has evidently taken no action to address the issue and has failed to oppose the motion and suggest that the defect can be remedied.  The motion accordingly is granted on this ground as to the entire complaint. 

 

First Cause of Action—Violation of the California Homeowners Bill of Rights

ISSUE NO. 2: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2924 LACKS MERIT BECAUSE THERE IS NO PRIVATE RIGHT OF ACTION UNDER THE STATUTE. Civ. Code § 2924.12(b); Hernandez v. Select Portfolio, Inc. (C.D. Cal., 2015) 2015 WL 3914741,

ISSUE NO. 3: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2924 LACKS MERIT BECAUSE PLAINTIFF RECEIVED ALL NOTICES REQUIRED BY CIVIL CODE SECTION 2924. UMF No. 30.

Defendant also argues that aside from the fact that plaintiff lacks standing to prosecute the claims in this action, plaintiff cannot prevail on any of his claims and is not entitled to any relief under the HBOR, since his claims fail, as a matter of law, and lack any merit whatsoever. 

“(a) 

 (1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.

 (2) Any injunction shall remain in place and any trustee's sale shall be enjoined until the court determines that the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an injunction based on a showing that the material violation has been corrected and remedied.”

To the extent plaintiff alleges that defendants violated section 2924(a)(5) and (6), section 2924 (a) is not a statute listed in section 2924.12, giving rise to an action for the remedies sought by plaintiff.   See Civil Code section 2924.12(a)(1).  It would appear that the claim under this statute fails as a matter of law.  As argued by defendant, absent plaintiff’s citation to authority suggesting otherwise, plaintiff’s claim for money damages resulting from an alleged violation of section 2924 is not cognizable, as section 2924.12(b) does not mention section 2924 (a).  

Defendant cites to Hernandez v. Select Portfolio, Inc. (2015 C.D. Cal.) 2015 WL 3914741, in which the federal district court, applying California law, stated:

“Because the California legislature clearly provided money damages as a remedy for certain HBOR violations, but not for others, the court is constrained to conclude that it did not intend to permit the recovery of money damages for a § 2924(a)(6) violation. For that reason, and absent citation to authority suggesting otherwise, Hernandez's claim for money damages resulting from defendants' alleged violation of § 2924(a)(6) does not appear to be cognizable.”

Hernandez, at 8.

Plaintiff has not opposed the motion, and has not cited authority suggesting otherwise, and the motion is granted on this ground as well. 

Defendant also argues that, regardless, plaintiff’s allegations lack merit because the uncontroverted evidence establishes that plaintiff received the various foreclosure notices and had notice of the various sale dates. 

Civil Code section 2924 (a) provides, in pertinent part:

(a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property, it is accompanied by actual change of possession, in which case it is to be deemed a pledge. If, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Financial Protection and Innovation, or is made by a public utility subject to the provisions of the Public Utilities Act, until all of the following apply:…

(5) Whenever a sale is postponed for a period of at least 10 business days pursuant to Section 2924g, a mortgagee, beneficiary, or authorized agent shall provide written notice to a borrower regarding the new sale date and time, within five business days following the postponement. Information provided pursuant to this paragraph shall not constitute the public declaration required by subdivision (d) of Section 2924g. Failure to comply with this paragraph shall not invalidate any sale that would otherwise be valid under Section 2924f.

(6)…. 

(c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.”

Defendant submits evidence showing that the various notices meeting the requirements were in fact served on plaintiff.  [UMF Nos. 6, 7, 10, 11-13, 15, 21, 27, and 30, and evidence cited; Thompson Decl., paras. 13, 15, 24, 26  Exs. D, E, G, H, N, P; Pelletier Decl. paras. 7, Exs. B, C, D, E, Responses to RFA No. 6, Responses to SI No. 1].  

This showing is sufficient to shift the burden to plaintiff to raise triable issues of material fact with respect to the service and sufficiency of the required notices.  Plaintiff has failed to oppose the motion and failed to raise triable issues of material fact with respect to the notices, and the motion is granted on this ground as well. 

ISSUE NO. 4: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2923.55 LACKS MERIT BECAUSE THE STATUTE DOES NOT APPLY TO AXOS. UMF No. 24. 

ISSUE NO. 5: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2923.55 LACKS MERIT BECAUSE PLAINTIFF RECEIVED THE BENEFITS OF THE STATUTE. UMF Nos. 5, 9 and 23.

ISSUE NO. 6: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2924.9 LACKS MERIT BECAUSE THE STATUTE DOES NOT APPLY TO AXOS. UMF No. 24. 

ISSUE NO. 7: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2924.9 LACKS MERIT BECAUSE PLAINTIFF RECEIVED THE BENEFITS OF THE STATUTE. UMF Nos. 5, 9 and 23. 

ISSUE NO. 8: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2923.6 LACKS MERIT BECAUSE THE STATUTE DOES NOT APPLY TO AXOS. UMF No. 25 and 26. 

ISSUE NO. 9: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2923.6 LACKS MERIT BECAUSE PLAINTIFF RECEIVED THE BENEFITS OF THE STATUTE. UMF Nos. 5, 9 and 23.

With respect to plaintiff’s claims under Civil Code sections 2923.55, 2924.9, and 2923.6, defendant argues that these fail as a matter of law.  

To the extent plaintiff relies on plaintiff’s statement that notices were not received, plaintiff’s compliant relies on Civil Code section 2924.9, which provides:

“(a) Unless a borrower has previously exhausted the first lien loan modification process offered by, or through, his or her mortgage servicer described in Section 2923.6, within five business days after recording a notice of default pursuant to Section 2924, a mortgage servicer that offers one or more foreclosure prevention alternatives shall send a written communication to the borrower that includes all of the following information:

(1) That the borrower may be evaluated for a foreclosure prevention alternative or, if applicable, foreclosure prevention alternatives.

(2) Whether an application is required to be submitted by the borrower in order to be considered for a foreclosure prevention alternative.

(3) The means and process by which a borrower may obtain an application for a foreclosure prevention alternative.

(b) This section shall not apply to entities described in subdivision (b) of Section 2924.18.

(c) This section shall apply only to mortgages or deeds of trust described in Section 2924.15.”

(Emphasis added). 

“(b) This section shall apply only to a depository institution chartered under state or federal law, a person licensed pursuant to Division 9 (commencing with Section 22000) or Division 20 (commencing with Section 50000) of the Financial Code, or a person licensed pursuant to Part 1 (commencing with Section 10000) of Division 4 of the Business and Professions Code, that, during its immediately preceding annual reporting period, as established with its primary regulator, foreclosed on 175 or fewer residential real properties, containing no more than four dwelling units, that are located in California.”

(Emphasis added). 

The showing supports defendant’s argument that statutory provisions relied upon, including Section 2924.9, do not impose the obligations on defendant Axos which plaintiff argues are violated.  Specifically, defendant points out that each of those statutes expressly apply only to lenders who, during their immediately preceding annual reporting period, foreclosed on more than 175 residential real properties, which Axos Bank did not do.  See Civil Code § 2923.6 (i) and Civil Code § 2923.55(g).  

The sections relied upon do not appear to provide relief against defendant Axos as a matter of law.  This showing shifts the burden to plaintiff to cite to some legal authority contrary to the clear language of the statutes, or to raise triable issues of material fact.   Plaintiff has failed to file opposition, so has failed to do so, and the motion is granted on this ground as well.  

Defendant also argues that plaintiff will be unable to establish a material violation of any of the HBOR provisions, that is, a violation which affected plaintiff’s loan obligations or the modification process, as plaintiff admittedly defaulted on the loan in 2019, and was reviewed for a loan modification and short sale.  [UMF Nos. 2, 5, 9, 23, and evidence cited; Pelletier Decl. Exs. C, D, Responses to RFA Nos. 5, 14, 17, 25; Thompson Decl., para. 9, 16, 22-23, Exs. F, M].

Moreover, to the extent plaintiff alleges that defendants have failed to continue to negotiate a short sale alternative, plaintiff has not alleged any statutory provision which mentions a short sale alternative, but seems to rely on Civil Code § 2923.6, which provides for procedures to be followed in loan modification application processes, and provides, in pertinent part:

“(c) If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee's sale until any of the following occurs:

(1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired.”

ISSUE NO. 10: PLAINTIFF’S CAUSE OF ACTION FOR VIOLATION OF CIVIL CODE SECTION 2924.17 LACKS MERIT BECAUSE PLAINTIFF HAS NO EVIDENCE TO SUPPORT THIS CLAIM. UMF No. 27.  

“(a) A declaration recorded pursuant to Section 2923.5 or pursuant to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to the requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding shall be accurate and complete and supported by competent and reliable evidence.

(b) Before recording or filing any of the documents described in subdivision (a), a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information.”

As plaintiff points out, bare allegations that foreclosure documents were signed without review fail to allege improper robo-signing. See, Rahbarian v. JP Morgan Chase (2014 E.D. Cal.) 2014 WL 5823103, at 8-9.  Defendant also demonstrates that plaintiff in response to discovery has conceded that it is not his contention that any foreclosure documents were “robo-signed.” [UMF No. 28, and evidence cited; Pelletier Decl., Exs. D, E, Response to SI No. 3]. 

Specifically, plaintiff was propounded Special Interrogatory No. 3, which asked: 

If YOU contend that AXOS “‘robo-signed’ foreclosure documents without verifying said documents were accurate, and without substantiating borrower’s default and the right to foreclose”, IDENTIFY all facts that support or upon which YOU base such contention.”

[Ex. D, No 3]. 

Plaintiff responded as follows:

“Responding party does not make such a contention at this time. However, once discovery is completed, responding party may be able to provide a definitive response, which may be a change in the herein response.”

[Ex. E, Response No. 3], 

 

Defendant has successfully established that plaintiff will be unable to establish his first cause of action for HBOR violations under any alleged theory.  Plaintiff has failed to contest the legal or factual arguments.  The motion for summary adjudication is granted as to the entire cause of action. 

Second Cause of Action—Wrongful Foreclosure 

ISSUE NO. 11: PLAINTIFF’S SECOND CAUSE OF ACTION FOR WRONGFUL FORECLOSURE LACKS MERIT BECAUSE THE FORECLOSURE SALE WAS NOT ILLEGAL, FRAUDULENT, OR WILLFULLY OPPRESSIVE. UMF Nos. 1-4, 17-21, 27-28, 30. 

ISSUE NO. 12: PLAINTIFF’S SECOND CAUSE OF ACTION FOR WRONGFUL FORECLOSURE LACKS MERIT BECAUSE PLAINTIFF WAS NOT PREJUDICED BY THE SALE. UMF No. 2, 18-21. 

ISSUE NO. 13: PLAINTIFF’S SECOND CAUSE OF ACTION FOR WRONGFUL FORECLOSURE LACKS MERIT BECAUSE PLAINTIFF CANNOT ESTABLISH THE ELEMENT OF TENDER. UMF Nos. 18-20.

The elements of a cause of action to challenge a non-judicial foreclosure sale are (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale suffered prejudice or harm; and (3) the trustor or mortgagor tenders the amount of the secured indebtedness or was excused from tendering. Lona v. Citibank (2011) 202 Cal.App.4th 89, 104. 

Plaintiff has failed to oppose the motion on this ground or to raise triable issues of material fact with respect to plaintiff’s prejudice.  

Defendant further argues that plaintiff will be unable to establish the element of the cause of action that plaintiff has tendered payment.  Defendant points out that plaintiff’s own allegations in the complaint demonstrate that plaintiff was unable to tender as his purported ability to cure the default was predicated on a short sale approval.  [Complaint, para. 22 (“Plaintiff has attempted to tender payment to cure the default of the subject loan and Deed of Trust but has been thwarted by the failure and/or refusal of defendants, and of them, including all DOES, by not considering short sale without justification.”)].  Defendant also submits evidence that plaintiff never offered to reinstate the loan prior to the trustee’s sale, and never tendered or offered to tender the outstanding loan balance.  [UMF No. 20, and evidence cited; Thompson Decl., para. 35; Pelletier Decl., Exs. B, C, Responses to RFAs Nos. 5, 24-26].   

Plaintiff has failed to controvert this evidence or argument and has failed to raise triable issues of material fact.  The motion as to the second cause of action will be granted. 

 

Third Cause of Action—Promissory Estoppel 

ISSUE NO. 14: PLAINTIFF’S THIRD CAUSE OF ACTION FOR PROMISSORY ESTOPPEL LACKS MERIT BECAUSE PLAINTIFF CANNOT ESTABLISH AXOS MADE A CLEAR AND UNAMBIGUOUS PROMISE. UMF No. 29. 

ISSUE NO. 15: PLAINTIFF’S THIRD CAUSE OF ACTION FOR PROMISSORY ESTOPPEL LACKS MERIT BECAUSE PLAINTIFF DID NOT RELY ON ANY PROMISE MADE BY AXOS. UMF No. 29.

ISSUE NO. 16: PLAINTIFF’S THIRD CAUSE OF ACTION FOR PROMISSORY ESTOPPEL LACKS MERIT BECAUSE PLAINTIFF CANNOT ESTABLISH THE ELEMENT OF DAMAGES. UMF Nos. 5-23, 29.

With respect to promissory estoppel, the Restatement of Contracts states the doctrine as follows:

“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forebearance is binding if injustice can be avoided only by enforcement of the promise.”

Restatement of Contracts, Section 90(l).  

“The elements of a promissory estoppel claim are “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” …’ ” (Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1672 [107 Cal. Rptr. 3d 470].)”

Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 225.

Defendant also argues that plaintiff cannot establish that he relied to his detriment on any alleged promise, as he fails to allege what other actions he would have engaged in which would have stopped the foreclosure and admits he did not rely on any alleged promise made by defendant.  [UMF No. 29, and evidence cited; Pelletier Decl. Exs. D, E, Responses to Special Interrogatories Nos. 5-9 (Indicating “Responding party does not make such a contention at this time” as to questions regarding deprivation of opportunity to refinance, seek other means to mitigate losses, as well as having more favorable foreclosure alternatives, engaging in other efforts to save the property, and asking, directly, “If YOU contend you relied on any promise made by AXOS, IDENTIFY all actions that YOU took in reliance.” (SI No. 8))].   

This showing is sufficient to shift the burden to plaintiff to raise triable issues of fact.  Plaintiff has failed to do so, and the motion as to the third cause of action will be granted. 

As defendant has established that each of the remaining causes of action of plaintiff’s complaint, the first, second and third causes of action, cannot be established by plaintiff, the motion for summary judgment is granted in its entirety. 

RULING:

[No Opposition]

Defendant’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues is GRANTED, procedurally and on its merits.  

Procedurally, plaintiff has failed to file any papers opposing this motion.  Accordingly, plaintiff has failed to comply with the statutory requirement of filing a separate statement addressing each material fact raised in the moving papers.  The motion is accordingly granted pursuant to CCP §437c(b)(3). 

Substantively, defendant has established that plaintiff will be unable to establish the essential element of standing to pursue the claims related to the subject property, as defendant has submitted uncontroverted evidence that supports a finding that the claims in this action belong to the bankruptcy trustee in plaintiff’s pending bankruptcy proceeding. [UMF Nos. 7, 8, 22, Thompson Decl., paras. 18, 19, Exhibits H, I, J; Pelletier Decl., para. 9, Ex. G].  

Plaintiff has failed to oppose the motion, so has failed to establish that plaintiff does have standing to pursue these claims as a matter of law, or to raise triable issues of material fact with respect to whether the bankruptcy trustee has abandoned the claims or otherwise formally permitted the claims in this lawsuit to be pursued by plaintiff.  Plaintiff has had this issue pointed out repeatedly throughout this litigation but has apparently failed to take any action to address the issue, or to obtain relief from the bankruptcy trustee, and has failed to file written opposition to this motion or request leave to take action to remedy the situation.  The Court construes this inaction as a concession that plaintiff has no expectation of being able to remedy his lack of standing.  The motion is accordingly granted on this ground. 

In addition, defendant has established with respect to each cause of action that plaintiff will be unable to establish one or more essential elements of each of the causes of action, or that the claims are not barred as a matter of law. [See Civil Code sections 2924.12(a)(1) and 2924.18(b); UMF Nos. 2, 4, 5, 6, 7, 8,  9, 10, 11-13, 15, 18-21, and 23-30,  and evidence cited; Thompson Decl., paras. 5, 7, 9, 10, 11, 13-16, 22-24, 26, and 33-35, Exs. B, D, F, E, G, H, M, N, and P; Pelletier Decl. paras. 7, Exs. B, C, D, E, Responses to RFA Nos. 1, 5, 6, 14, 17 and 25, Responses to SI Nos. 1, 3, 5-9, and 24-26].  

This showing is sufficient to shift the burden on the plaintiff to establish that the claims are either not barred as a matter of law, or to raise triable issues of material fact.   Plaintiff has failed to oppose the motion, so has failed to meet this burden, and the motion properly is granted in its entirety. 

Defendant to submit appropriate form of Judgment. 

 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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