Judge: Robert C. Longstreth, Case: 37-2020-00017840-CU-OR-CTL, Date: 2024-06-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 03, 2024

06/04/2024  02:00:00 PM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2020-00017840-CU-OR-CTL JUAREZ VS ENCORE AMERICAN INVESTMENTS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants FCI Lender Services, Inc. and Encore American Investments, Inc.'s Motion for Summary Judgment (ROA 524) is GRANTED.

Defendants have presented evidence that Plaintiff executed a written release of her claims against them by way of a July 16, 2019 loan modification agreement. (Def. Sep. Stmt. ¶ 79; Speaker Decl., Exh. 8, ¶ 7.) The court concludes Defendants are entitled to summary judgment on these grounds.

Plaintiff's argument that the release is barred by Civil Code section 1668 does not have merit. This statute 'is meant to prohibit contracts releasing liability for future torts [citation], not to prohibit settlement of disputes relating to past conduct.' (Daneshmand v. City of San Juan Capistrano (2021) 60 Cal.App.5th 923, 935, quoting Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1587, fn. 12.) Here, all of the conduct alleged in Plaintiff's Fourth Amended Complaint is conduct that occurred prior to the signing of the loan modification. Accordingly, Plaintiff has not demonstrated that Civil Code section 1668 bars the release.

Plaintiff's argument that the modification agreement is void and unenforceable because it violates the Truth in Lending Act ('TILA') does not have merit. The basis of Plaintiff's contention is her assertion that Defendants improperly charged her a modification fee of $3,300.00 in violation of title 12, Code of Federal Regulations, section 1026.34(a)(7). As a preliminary matter, these facts are not alleged in Plaintiff's Fourth Amended Complaint, and thus they do not form the basis of any of Plaintiff's claims in this case. 'It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.' (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Moreover, even presuming this fee violates TILA, Plaintiff offers no legal authority to support her assertion that the charging of a fee in violation of TILA renders either the entire modification agreement as a whole or the release provisions in particular void and unenforceable.

Plaintiff's argument that she did not understand what she was agreeing to when she signed the modification agreement is not relevant. Plaintiff cites no legal authority to suggest that the fact that she did not fully understand the modification agreement somehow renders the release void. To the contrary, it is generally presumed that a party to a contract has read and understood it. (See, e.g., Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710 (en banc), 'the general rule [is] that one who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument [citations].') Defendants further assert 'Plaintiff is bound by her written representations.' (Memo. P&A at 4:3-4.) Calendar No.: Event ID:  TENTATIVE RULINGS

3135772  6 CASE NUMBER: CASE TITLE:  JUAREZ VS ENCORE AMERICAN INVESTMENTS INC [IMAGED]  37-2020-00017840-CU-OR-CTL During her deposition, Plaintiff was asked about the Certification of Non-Owner Occupancy which she signed under penalty of perjury relating to the 2018 loan. The Certificate states her principal residence is located on Parkside Drive, that the Zoro Way property being used to secure the 2018 loan was not her principal place of residence, and that she agrees to hold the lender harmless and defend and indemnify the lender for any claim 'that arises from the falsity of any part of this declaration.' (Aguirre Decl., Exh.

3.) When asked whose handwriting it was that had written the Parkside Drive address on this Certification, Plaintiff admitted '[i]t's probably mine.' (Id. at Exh. 1, 274:4-12; Def. Sep. Stmt. at ¶ 46.) This contradicts the allegations of Plaintiff's pleadings, wherein she alleged she lived at the Zoro Way property nearly all her life including at all times relevant to the facts of this case, that Defendants 'fraudulently concealed' the true nature of the loans from her as non-owner occupied, and that Plaintiff had 'no idea' that Defendants had falsely misrepresented her occupancy of the Zoro Way property on various documents. (4AC ¶¶ 14-15, 35, 38, 102, 105-106, 175.) These facts further support summary judgment in favor of Defendants.

Finally, Defendant Encore American Investments, Inc. ('Encore') is also entitled to summary judgment on the grounds there is no evidence that Defendant Mathan Fairweather was an agent of Encore.

Plaintiff alleges that Fairweather acted as Encore's agent with regard to the 2018 loan. (4AC ¶¶ 168-170.) However, the evidence she relies upon does not support this assertion. (See, e.g., Pltf. Resp.

Sep. Stmt. at ¶ 25; Pltf. Addl. Facts at ¶¶ 156, 166, 168). Plaintiff did not allege Fairweather acted as an agent of Defendant FCI Lender Services, Inc.

Defendants' evidentiary objection no. 1, to the declaration of Plaintiff's counsel Sanford Parke, is sustained as to the declaration filed at ROA 556. As to Defendants' other evidentiary objections, the court declines to rule on them, as the evidence to which Defendants objected was not material to the court's disposition of the motion. (Code Civ. Proc. § 437c(q).) Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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