Judge: Salvatore Sirna, Case: 21PSCV00617, Date: 2024-12-02 Tentative Ruling

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Case Number: 21PSCV00617    Hearing Date: December 2, 2024    Dept: G

Plaintiff Diana Culkin’s Motion to Admend Judgment

Respondent: Defendants INCO Builders, Sam Ostayan, and Fleet Capital Inc.

TENTATIVE RULING

Plaintiff Diana Culkin’s Motion to Admend Judgment is DENIED.

BACKGROUND

This is a wrongful foreclosure action. On July 30, 2021, Plaintiff Diana Culkin, also known as Diana Jannette Marmolejo Corona, filed a complaint against Defendants Fleet Capital, Inc. (Fleet Capital), Best Alliance Foreclosure and Lien Services Corp. (Best Alliance), Inco Builders (Inco), and Does 1-25, alleging the following causes of action: (1) violation of California’s non judicial foreclosure statutes, (2) wrongful foreclosure, (3) conversion, (4) unfair business practices, and (5) declaratory relief.

On February 9, 2022, Inco filed a cross-complaint against Culkin, Michael Culkin, and Roes 1-10, alleging the following causes of action: (1) trespass and (2) slander of title.

On February 23, 2022, Fleet Capital and Inco filed a motion for judgment on the pleadings as to the Complaint. On August 4, 2022, the court granted the motion with leave to amend.

On October 7, 2022, Culkin filed a First Amended Complaint (FAC) against the same defendants and Sam Ostayan, alleging the following causes of action: (1) violation of California’s nonjudicial foreclosure statutes, (2) wrongful foreclosure, (3) quiet title, (4) unfair business practices, and (5) declaratory relief. On January 5, 2023, the court sustained a demurrer to the FAC by Fleet Capital, Inco, and Ostayan.

On February 24, 2023, the court denied Fleet Capital and Inco’s motion to dismiss Culkin’s action for failure to file a timely amended complaint and deemed Culkin’s Second Amended Complaint (SAC) filed as of that date. The SAC was against the same defendants and alleged the following causes of action: (1) violation of California’s nonjudicial foreclosure statutes, (2) wrongful foreclosure, (3) quiet title, (4) promissory estoppel, (5) breach of the covenant of good faith and fair dealing, (6) violation of the Rosenthal Fair Debt Collection Practices Act, (7) unfair business practices, and (8) declaratory relief. On May 4, 2023, the court sustained a demurrer and granted a motion to strike by Fleet Capital, Inco, and Ostayan as to the SAC.

On October 21, 2024, the court granted Fleet Capital, Inco, and Ostayan’s motion for summary judgment.

ANALYSIS

Culkin moves for reconsideration of the court’s October 21, 2024 order granting Fleet Capital, Inco, and Ostayan’s motion for summary judgment. For the following reasons, the court DENIES Culkin’s motion.

Legal Standard

Code of Civil Procedure section 1008 sets out two means by which a party can seek reconsideration of a prior trial court order. First, “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc., § 1008, subd. (a).) Second, “[a] party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (b).)

Code of Civil Procedure section 1008 “specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008, subd. (e).)

Discussion

In this case, Culkin first argues the court erred in granting summary judgment on the grounds that Culkin failed to file a separate statement in opposition to Defendants’ motion. (Motion, e.p. 3:12-15.) Culkin claims Culkin did submit a separate statement on September 23, 2024. (Motion, e.p. 2:4-5, 3:15-16.) But there are two fatal flaws with Culkin’s argument. First, even if Culkin submitted such a separate statement, the court would not be required to consider it as the deadline to submit such a separate statement already elapsed on September 20, 2024, when Culkin’s opposing papers, including the separate statement, were due. (08/12/2024 Minute Order, p. 1.)

Second, Culkin never actually filed a separate statement as claimed on September 23, 2024. Instead, the only filing Culkin made on September 23, 2024, was a declaration entitled “separate declaration in support of the opposition.”  Even if the court were to treat this declaration as a separate statement, the document fails to comply with the statutory requirements for a separate statement. Pursuant to Code of Civil Procedure section 437c, subdivision (b)(3), a separate statement must respond to each of the material facts in Defendants’ separate statement and must provide any additional material facts that the opposing party contends are disputed along with references to the supporting evidence. These requirements are not optional.  If the opposing party fails to submit a code-compliant separate statement, the court may grant the motion for summary judgment or adjudication. (Code Civ. Proc., § 437c, subd. (b)(3).)

Here, Culkin’s declaration failed to comply with these requirements as it does not address any of the material facts in Defendants’ supplemental separate statement. Instead, Culkin’s declaration appears to summarize Culkin’s claims and arguments while failing to address the material facts at issue. Thus, the court finds Culkin’s first argument does not provide a proper basis upon which the court may grant the relief requested.

Next, Culkin contends the court erred in granting summary judgment because the underlying foreclosure was “void” and “improper” pursuant to Civil Code sections 2924 through 2924k as well as a series of federal statutes. (Motion, e.p. 2:5-10, 15-21.) Of the provisions allegedly violated, however, the only one alleged by Culkin in the operative SAC was Civil Code section 2924b. (10/21/2024 Ruling, p. 2, citing SAC, ¶ 75, 78.) Culkin may not argue the foreclosure was void or invalid based on statutory violations that were not alleged in the operative complaint. (See Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182 [holding moving party defendant is not required to negate elements of a cause of action never pleaded].) And as to the alleged violation of Civil Code section 2924b, the court found Defendants provided sufficient evidence to establish they complied with this section. (10/21/2024 Ruling, p. 4, citing Defendants’ Separate Statement (DSS), ¶ 6.) Since Culkin failed to file a separate statement addressing this undisputed material fact, the court found Culkin failed to establish there was a triable issue of fact as to this alleged violation. (10/21/2024 Ruling, p. 4, citing Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416 [“If the opposing party fails to submit the required separate statement, under the applicable law and rules, a trial court may conclude that the opposing party has not satisfied his ‘burden of production’ showing a triable issue of fact.”].) Additionally, the court notes that Culkin fails to point to any new facts or law that change the court’s ruling.

Third, Culkin maintains it was “illegal” for the notice of default to be based on the debt note and interest. (Motion, e.p. 2:11-15.) Culkin also appears to maintain that it was “fraud” or “unjust enrichment” for Defendants to skip the pre-foreclosure process. (Motion, e.p. 2:23-28.) In granting Defendants’ motion for summary judgment, however, the court explicitly addressed this argument and noted Culkin failed to provide any authority that required Defendants to avoid foreclosing on interest in favor of seeking a foreclosure on the balloon payment. (10/21/2024 Ruling, p. 3-4.) Beyond vague assertions of “fraud” and “unjust enrichment,” the court finds Culkin still fails to point to any such authority.

Fourth, Culkin claims the court “agreed that the short time was fatal for the Plaintiff.” (Motion, e.p. 3:2-3.) But Culkin provides no citation to any court transcript or order where the court made this finding. In fact, as noted above, the court found the opposite by noting the undisputed evidence established Defendants provided adequate notice to Culkin.

Finally, Culkin claims Culkin has proven Defendants’ notification failures, “all of the denies [sic] by defendant,” and all of Defendants’ opportunities to “amend” their alleged violations. (Motion, e.p. 3:4-4:9.) But as noted above, Culkin failed to provide the court competent evidence upon which the court could rely by failing to submit a timely and code-compliant separate statement. By failing to contest Defendants’ material facts in the proper manner, pursuant to code, Culkin gave the court proper grounds to grant Defendants’ motion.

Accordingly, the court DENIES Culkin’s motion.

CONCLUSION

Based on the foregoing, Culkin’s motion to amend judgment is DENIED.