Judge: Ronald F. Frank, Case: YC070538, Date: 2022-07-27 Tentative Ruling
Case Number: YC070538 Hearing Date: July 27, 2022 Dept: 008
Before the Court is a case originally filed in 2015 which in the operative 5th Amended Complaint states a single cause of action labelled as one for breach of contract but seeking both monetary damages and an injunction for a claimed wrongful foreclosure. The case file is substantial and includes a host of discovery and pleading motions plus a ruling from the Court of Appeal resuscitating the case after it had been dismissed. Plaintiff when he was represented by counsel served evasive responses to four sets of written discovery, responses as to which Judge Hill granted motions to compel and ordered payment of monetary sanctions. On 5/5/22, Plaintiff now representing himself served meager but sworn responses to the four sets of discovery. Those meager responses are challenged by Defendant’s pending motion for terminating sanctions, discussed more fully below. Also pending is a motion to have the Defendants’ set of 26 requests to admit genuineness of documents and 34 requests to admit facts be deemed admitted, and a motion for summary judgment as well. The Court’s tentative rulings as to each are discussed below.
1. Defendant’s Motion for Terminating Sanctions. Tentative: DENY, but order lesser sanctions for demonstrated discovery misuse and evasiveness. Plaintiff’s opposition was filed late, depriving Defendant of time to file a reply. Judge Hill ordered answers to the 4 sets of written discovery without objections, but Mr. Tucker nonetheless continued to assert objections in his 5/5/22 responses. That is unacceptable. Mr. Tucker also stated in his 5/5/22 verified responses, under penalty of perjury, that he does not remember as to interrogatories and requests to admit facts that go to the core of the lawsuit. While a truthful answer that one does not remember is acceptable, the Court will bind him at trial to his sworn statements that he does not remember a host of matters.
a. The Court overrules each of Plaintiff’s objections asserted as to form interrogatories 2.2, 2.6, 2.7, 2.8, and 12.1, and orders Mr. Tucker to serve supplemental answers without objection to each of those interrogatories within 15 calendar days of this hearing.
b. The Court advises Mr. Tucker that on motion by Defendant before or at trial, the Court will bar him from offering any evidence as to the form interrogatories or requests for admission of fact as to which he answered “I do not remember.”
c. The Court overrules all of Mr. Tucker’s objections to the 10 categories in the request for production of documents, and the Court will bind Mr. Tucker to his sworn discovery responses asserting that he does not remember and such communications and cannot find documents responsive to the relevant categories of the RFP. By way of example, as to RFP #1 and 2, the Court will bar Mr. Tucker from testifying at trial as to any written communication he had with Don Marshall and will bar him from offering as evidence at trial any documents he may have provided to Mr. Marshall for purpose of Mr. Marshall providing the opinion given in the letter of May 8, 2016.
d. The Court overrules all of Mr. Tucker’s objections to the 11 special interrogatories and orders him to serve a verified supplemental answer within 15 calendar days of this hearing to all 11 special interrogatories.
2. Motion to Declare Admissions to be Deemed Admitted. Tentative: GRANT IN PART. No opposition was filed. The Court orders that all of the Requests for Admission of Genuineness of documents 1-26 are deemed admitted such that Defendant need lay no further foundation as to the genuineness of those documents if offered as evidence at trial. As to Requests for Admission of Facts 1-34, the Court overrules each of the objections asserted and notes that the Court will bind Mr. Tucker to his sworn responses that he does not remember as to the substance of each RFA. The Court will allow Mr. Tucker, if he so chooses, to serve a verified supplemental response to any RFA as to which he now remembers and can admit or deny its substance. As to any such supplemental RFA that Mr. Tucker denies, he shall provide a supplemental verified answer without objection to form interrogatory 12.1 and 17.1 and its subparts, i.e., if he now denies a RFA he shall states the facts upon which the denial is based, identify any witnesses including himself with knowledge of such facts, identify and produce any documents evidencing the facts upon which such a denial is based, and identify any persons who heard or witnessed any oral or written statement concerning such facts.
3. Defendant’s Motion for Summary Judgment. Tentative: Deny because Defendant’s evidence shows Plaintiff is entitled to a judgment of $7.71.
a. Plaintiff filed written opposition, claiming UMF 19 is in dispute as to whether the discrepancy on the 1989 mortgage statement was, or should have been, applied to interest (PNC’s contention) or principal (Tucker’s contention). But Defendant’s evidence shows a corrected statement of interest that was explained and mailed to Zuila Tucker. Mr. Tucker also contends the corrected form 1098 was never filed with the IRS, although he does not dispute that a corrected for 1089 was enclosed with Ms. Weingart’s letter and he does not provide any evidence that the amount on the corrected 1098 form was inaccurate. Defendant does not provide any proof that the amended 1098 was ever filed with the IRS, but that is not a fact material to this MSJ. Tucker’s Exhibit D, a 1/10/96 letter from Mr. Leff, the lawyer for Zula Tucker to Mr. Hill, and Exhibit A which is Zula Tucker’s 7/14/90 letter to Ms. Weingart, do not raise triable issues of fact as to this UMF. Mr. Leff’s letter is not proof that the corrected 1098 form mis-stated the amount of interest paid during that calendar year. Ms. Tucker’s 7/14/90 letter precedes the 1995 Release by 5 years, and cannot be used to dispute the principal balance stated and stipulated to by her years later.
b. UMF 20 is undisputed; the Lender demonstrated the calculation on the corrected Form 1098 and showed how payments were applied to principal and interest for 1998 and 1989.
c. While Plaintiff purports to dispute UMF 21, his supporting evidence does not raise a triable issue as to UMF 21. Devoid from Plaintiff’s evidence is any witness or any documents tending in reasons to show that the corrected Form 1098s reflected the correct amount of interest paid and, correspondingly, the correctness of the 1989 Mortgage Statement.
d. UMF 22 is not responded to in Plaintiff’s Separate Statement. UMF 22 indicates that Ms. Tucker’s lawyer Mr. Leff conceded that the interest calculation was correct as per the March 1990 letter. Plaintiff thus has not provided any evidence to dispute this UMF. Since plaintiff’s agent made an admission contemporaneously with the underlying
transaction, that evidence is quite relevant. Further, if the interest calculation was correct, the reasonable inference to be drawn is that the principal calculation corresponding to that same time period was also correct. The 1995 Release stipulated to the amount of principal then owed as $344,850.38.
e. Plaintiff’s Separate Statement indicates that UMF 24 is in dispute as to whether the Release Agreement (Exh. E to the MSJ’s custodial declaration attached to the 9/20/21 Statement of Evidence ISO the MSJ), should be held as to bar the current dispute in this lawsuit, a lawsuit filed over 20 years after the 10/14/95 release agreement. To the extent that the MSJ seeks a legal determination that the 10/14/95 release agreement acts as a bar to this lawsuit filed two decades later, the Court disagrees. The 1995 Release pertains to a defined term, the “Claim,” which concerned a failure to process a request to convert the variable rate mortgage to a fixed rate mortgage. The scope of the 1995 Release on its face does not pertain to a potential future assertion about a wrongful foreclosure or the Lender wrongly allocating payments to interest rather than to principal in the monthly or annual statements of account or in forms submitted to the IRS. Also, the 1995 Release agreement ¶ 5 provides that Indiana law, not California law, will govern its interpretation, and neither side has briefed how Indiana law might treat this issue. The dispute over UMF 24 is not, however, determinative of the MSJ.
f. UMF 25 states that the unpaid principal balance as of 10/1/95 was $344,850.38 based on the 1995 Release. That is the number stated in the Release, notwithstanding Mr. Tucker’s disagreement with that number. Plaintiff’s evidence does not raise a genuine dispute as to UMF 25. There is thus no dispute issue of fact that the 1995 Release states that number. While Plaintiff argues whether that number was correct, he has not presented competent evidence to raise a triable issue as to UMF 25.
g. UMF 26 purports to state the principal balance historically back to 12/31/89 predicated on the 1995 Release. Mr. Tucker contends in his Separate Statement that UMF 26 is in dispute, but he does not provide evidence stating what different number is claimed to be in 1989. The Marshall letter does not state what Mr. Marshall contends the amount of the principal balance in 1989 either, even if the Marshall letter were competent evidence in response to this MSJ. Mr. Tucker’s other supporting evidence including an attorney letter from Mr. Leff (asserting claims about a claimed discrepancy amount dating back to 1989), and Zula Tucker’s 7/14/90 letter asserting the same discrepancy, does not create a disputed issue of material fact as to UMF 26. Even if there were a discrepancy in 1990, which the Lender conceded, the evidence shows the discrepancy was corrected which Mr. Leff confirms per UMF 22 and Ms. Tucker conceded in the 1995 Release.
h. It is true that the Court of Appeal decision in this case held that the four-year contract statute of limitations (CCP §337(1)) bars any claim of failure to credit plaintiff for the proper amount of payments made in 1988 to 1990. However, the appellate decision permitted Plaintiff to challenge payments made within the 4 years preceding the filing of the lawsuit, and by inference permitted Plaintiff to allege harm caused within the limitations period of this 2015 lawsuit.
i. UMF 27 is not disputed because Mr. Tucker’s supporting evidence, the Marshall letter, fails to lay sufficient foundation and is essentially an expert opinion given without supporting declaration.
j. UMF 28 is in dispute, based on the dispute noted as to UMF 26.
k. UMF 30 is not in dispute, as Mr. Tucker stands in the shoes of Zula Tucker. What is disputed about the 1995 Release is its scope of coverage, a mixed questions of fact and law as noted re UMF 24.
l. PNC’s witness William Hardrick states the historical amount owed was $1.16, which if compounded at 7.75% would yield a total of $7.71. (Hardrick Decl of 9/15/21 at ¶¶ 28, 29.) That means Defendant is not entitled to judgment as a matter of law, but that perhaps Plaintiff’s recoverable damages would be de minimus if the jury or Court accepts Mr. Hardrick’s opinion.
4. Objections to Evidence on Motion for Summary Judgment: The Court SUSTAINS the Defendant’s objection to the letter of May 8, 2016, the so-called Marshall Letter. This letter lacks proper foundation, it is not under penalty of perjury, and it purports to assert expert opinions tantamount to a retrospective audit of historical payments. The Court also notes that Mr. Marshall’s 5/8/16 letter asserts a different amount of the discrepancy dating back a quarter century. The Court or jury may well consider Mr. Marshall’s opinions at trial, but only if Plaintiff complies with the Evidence Code’s requirements for offering such testimony.
5. 15 calendar days from July 27, 2022 is August 11, 2022.
6. Discovery sanctions are awarded progressively and the intentional failure to comply with a Court order on a motion to compel or a motion for sanctions justifies increasingly severe sanctions. Mr. Tucker is forewarned that violations of the Court’s discovery orders being issued 7/27/22 will likely result in “doomsday” sanctions upon application by Defendant. “Doomsday” in this context means dismissal of the lawsuit by striking the Fifth Amended Complaint.
7. The Court will stay all its discovery orders and will vacate the monetary sanctions awarded by Judge Hill if the parties will stipulate to a dismissal of the Complaint and waiver of costs.
Ronald F. Frank
Judge of the Superior Court