Judge Richard S. Whitney, Case 37-2022-00043039-CU-BC-CTL 2024-03-01 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2022-00043039-CU-BC-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 28, 2024

03/01/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2022-00043039-CU-BC-CTL VERGANI VS MEJIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF GEORGE VALERIO VERGANI'S FOR SUMMARY JUDGMENT is DENIED.

Plaintiff GEORGE VALERIO VERGANI ('Defendant') seeks summary judgment as to his complaint against Defendant Erwin Bejamin Mejia Cespedes ('Defendant'). In ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The motion is procedurally defective. A motion for summary judgment brought by a plaintiff may only be granted where the plaintiff has shown there is no defense to the entire action. (Code Civ. Proc., § 437c.) While Plaintiff could have moved for summary adjudication, Plaintiff did not do so. It appears Plaintiff attempted to move to summarily adjudicate Plaintiff's unjust enrichment cause of action. Even if Plaintiff's arguments were accepted, the Court could not grant summary judgment because Plaintiff has not, and could not, demonstrate that each of Plaintiff's claims are meritorious. The cause of action for breach of contract and unjust enrichment are mutually exclusive. 'The elements of an unjust enrichment claim are the 'receipt of a benefit and [the] unjust retention of the benefit at the expense of another.'' (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 [Citation omitted].) '[U]njust enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust.' (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490.) 'As a matter of law, an unjust enrichment claim does not lie where the parties have an enforceable express contract.' (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.) If Plaintiff had a valid breach of contract claim, Plaintiff could not also recover on a theory of unjust enrichment. It is not possible to grant Plaintiff summary judgment. Further, Plaintiff wholly failed to address any of the elements for the common count claims. The motion must be denied.

Beyond the procedural issues, Defendant has raised issues of fact that preclude summary adjudication.

Unclean hands is an affirmative defense to unjust enrichment. (See Federal Deposit Ins. Corp. v. Dintino Calendar No.: Event ID: TENTATIVE RULINGS

3073375 51 CASE NUMBER: CASE TITLE: VERGANI VS MEJIA [IMAGED] 37-2022-00043039-CU-BC-CTL (2008) 167 Cal.App.4th 333, 355, fn. 10; see also Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 54.) Defendant has raised issues of fact as to whether the loan was illegally usurious. (Defendant's Undisputed Material Facts [UMF] Nos. 36-39; Plaintiff' Separate Statement of Undisputed Material Facts [SSUMF] Nos. 5-7; Cal. Const., art. XV, § 1; Civ.Code, §§ 1916–1, 1916–2, and 1916–3; § 37:4.

Essential elements of usury, 11 Cal. Real Est. § 37:4 (4th ed.).) This is combined with the fact Defendant's grasp of English is rudimentary (his primary language is Spanish), Defendant is not highly educated, and Plaintiff negotiated the loan directly with Defendant. (UMF Nos. 24-25, 33.) Defendant has provided evidence to indicate Plaintiff's conduct was part of the same transaction and could be characterized as violating conscience or good faith. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 685-86.) The Court finds Defendant has raised issues of fact as to whether the Court should apply the doctrine of unclean hands to preclude Plaintiff from recovering.

While there is an exception to the Usury Law for licensed real estate brokers, Plaintiff was not a licensed real estate broker. (§ 37:41. Exemptions-Loans and forbearances 'made or arranged' by a licensed real estate broker, 11 Cal. Real Est. § 37:41 (4th ed.); UMF Nos. 32-35; Cal. Const. art. XV, § 1; Civ. Code, § 1916.1.) Moreover, Defendant has raised issues of fact as to whether Defendant relied upon Plaintiff's mistake such that it would be unjust to require Defendant to pay Plaintiff. (UMF No. 39; Sun 'n Sand, Inc.

v. United California Bank (1978) 21 Cal.3d 671, 700.) In sum, Defendant has raised triable issues of fact. The motion is denied.

Defendant's Objections to Evidence: The Court declines to rule on the objections 1-6 as the objections violate California Rules of Court, Rule 3.1354.

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