Judge Teresa A. Beaudet, Case Number: 23STCV09979, Date: 2024-09-12 Tentative Ruling

Plaintiff Chang B. Park (“Plaintiff”) filed this action on May 4, 2023 against Defendant First Aspen Corporation. The Complaint alleges causes of action for (1) breach of contract,

(2) violation of the Fair Debt Collection Practices Act, (3) fraud, (4) negligence, and (5) unjust enrichment.

Defendant First Aspen Financial Corporation (“Defendant”) now moves for an order granting summary judgment, or in the alternative, summary adjudication in favor of Defendant and against Plaintiff. Plaintiff opposes.

The Court grants Defendant’s request for judicial notice as to Exhibits O and P.

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” ((Id., § 437c, subd. (f)(1).)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid.) Courts “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.)¿

“A defendant or cross-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 or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” ((Code Civ. Proc., § 437c, subd. (p)(2).)

In the Complaint, Plaintiff alleges that she “bought ‘VAC/VIC Golden State Fwy, Gorman, CA 93536’ for $400,000 twenty years ago.” (Compl., p. 2.) “[P]laintiff borrowed money from First Aspen Corporation on February 19, 2013. The loan agreement and escrow instructions stated that the [P]laintiff got $40,000.00 for land security with a 2-year payback period and a 10% interest rate. First Aspen Corporation imposed 3-point loan fees…” (Compl., p. 2.)

Plaintiff alleges that “defendant had to send a trustee sale notice to the land’s address and the plaintiff’s home postal address. The defendant reportedly notified the unoccupied property instead of the plaintiff’s home postal address. The complainant alleges they were uninformed of the foreclosure procedure carried out without their knowledge. The plaintiff claims that the defendant sent the notice of trustee sale exclusively to the unoccupied property to conceal the foreclosure.” (Compl., p. 2.) Plaintiff further alleges that “the property was sold for $131,342.29 on August 18, 2022, well below its projected $1,200,000. The complainant claims the auction selling price is suspiciously low since the land’s worth should have improved over the preceding 20 years. This disparity makes the plaintiff suspect fraud by the defendant.” (Compl., pp. 2-3.)

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” ((Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

In the first cause of action for breach of contract, Plaintiff alleges that “the loan agreement required the defendant to send a trustee sale notice to the land’s address and the plaintiff’s home postal address…The plaintiff argues that the defendant intentionally delivered the notification to the unoccupied property, where no one could receive it, rather than to the plaintiff’s home postal address.” (Compl., p. 3.) Plaintiff alleges that “[t]his failure immediately violates the loan agreement…” (Compl., p. 3.)

Defendant asserts that Plaintiff’s breach of contract cause of action lacks merit. Defendant submits the Declaration of Sigmund J. Lichter, the president of First Aspen Financial Corporation. (Lichter Decl., ¶ 1.) Mr. Lichter states that “[o]n February 19, 2013, First Aspen Financial Corporation (under the name First Aspen Corporation) agreed to loan the sum of $40,000.00 to Chang B. Park under a ‘Loan Agreement & Escrow Instructions’…” (Lichter Decl., ¶ 4.) “On February 21, 2013, Ms. Park executed a Short Form Deed of Trust and Assignment of Rents,” which is attached as Exhibit “B” to Mr. Lichter’s declaration. (Lichter Decl., ¶ 5.) Mr. Lichter states that “[u]nder the terms of the Short Form Deed of Trust and Assignment of Rents the above-described $40,000.00 loan was secured by two parcels of real property that is described in Exhibit A to the Short Form Deed of Trust and Assignment of Rents.” (Lichter Decl., ¶ 5.)

Defendant asserts that the “[t]he Deed of Trust (Exhibit B) specifies one mailing address for Ms. Park - P.O. Box 1245, Lebec, CA 93243.” (Mot. at p. 6:11-12.) The subject “Short Form Deed of Trust and Assignment of Rents” provides, inter alia, that “THIS DEED OF TRUST, made February 21, 2013, between Chang B. Park, a married woman as her sole and separate property, herein called TRUSTOR, whose address is P.O. Box 1245, Lebec, CA 93243, Chicago Title Company, a California Corporation, herein called TRUSTEE, and First Aspen Corporation, a California Corporation, herein called BENEFICIARY, WITNESSETH: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE IN TRUST, WITH POWER OF SALE, that property in Los Angeles County, California, described as: SEE EXHIBIT ‘A’ ATTACHED HERETO AND MADE A PART HEREOF…” (Lichter Decl., ¶ 5, Ex. B, underline added.)

Defendant also submits the Declaration of Thomas M. Dandrea, the President of California Trustee Services, Inc. (Dandrea Decl., ¶ 1.) Mr. Dandrea indicates that “[o]n August 3, 2021, California Trustee Services executed a Notice of Trustee’s Sale,” a copy of which is attached as Exhibit “G” to Mr. Dandrea’s declaration. (Dandrea Decl., ¶ 7.) The Notice of Trustee’s Sale provides, inter alia, that “YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED 2/21/2013. UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.” (Dandrea Decl., ¶ 7, Ex. G.) The Notice of Trustee’s Sale further references the “Trustor” as “Chang B. Park, a married woman as her sole and separate property,” and the “Street Address or other common designation of real property” as “VAC/VIC GOLDEN STATE FRWY GORMAN, CA 93536.” (Dandrea Decl., ¶ 7, Ex. G.)

Mr. Dandrea states that “I directed Nationwide Posting & Publication to post the above-described Notice of Trustee’s Sale on the real property that is described in First Aspen Financial Corporation’s Deed of Trust.” (Dandrea Decl., ¶ 8.) Mr. Dandrea further states that “[o]n August 5, 2021, I mailed the above-described Notice of Trustee’s Sale to Chang B. Park at the addresses shown on the Affidavit of Mailing signed by me under penalty of perjury, a true and correct copy of which is attached hereto as Exhibit I and incorporated by reference herein.” (Dandrea Decl., ¶ 9.) Exhibit “I” to Mr. Dandrea’s declaration lists four addresses for Chang B. Park, including “P.O. Box 1245 Lebec, CA 93243” and “4007 Copco Drive Los Angeles, CA 93240.” (Dandrea Decl., ¶ 9, Ex. I.) As set forth above, the “Short Form Deed of Trust and Assignment of Rents” lists the address P.O. Box 1245, Lebec, CA 93243. (Lichter Decl., ¶ 5, Ex. B.) In addition, in the Complaint, Plaintiff alleges that her “home postal address is ‘4007 Copco Drive, Los Angeles, CA 93240, Mailing Address P.O. Box 1245, Lebec, CA 93243.’” (Compl., p. 2.)

Defendant asserts that accordingly, “there is no factual issue as to whether the Notice of Trustee’s Sale was sent to [Plaintiff’s] mailing address (among other addresses).” (Mot. at p. 6:16-18.)

In the opposition, Plaintiff argues that “Defendant’s failure to send notice of the trustee sale to Plaintiff’s home address constitutes a clear breach of contract. The loan agreement expressly required Defendant to provide proper notice to both the land’s address and Plaintiff’s home postal address.” (Opp’n at p. 3:24-26.) But Plaintiff does not provide any evidence of such requirement, or evidence showing that Defendant failed to send the subject notice of trustee’s sale to Plaintiff’s home address. Plaintiff also does not appear to address or dispute Defendant’s evidence that the Notice of Trustee’s Sale was mailed to Plaintiff at “P.O. Box 1245 Lebec, CA 93243” and “4007 Copco Drive Los Angeles, CA 93240.” (Dandrea Decl., ¶ 9, Ex. I.)

As noted by Defendant, Plaintiff does not offer any evidence in support of the opposition. As discussed, “[t]he plaintiff…shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” ((Code Civ. Proc., § 437c, subd. (p)(2).) Further, as noted by Defendant, Plaintiff did not file a separate statement with the opposition. Pursuant to Code of Civil Procedure section 437c, subdivision (b)(3), “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

In the first cause of action for breach of contract, Plaintiff further alleges that “defendant’s inconsistent loan fees are the second violation of the contract. The complainant claims First Aspen Corporation charged 3-point loan fees, which is uncommon in the sector. The plaintiff may allege that these costs were not explicitly disclosed or exorbitant, breaching the loan agreement.” (Compl., p. 4.)

In the motion, Defendant asserts that “[t]he one-page Loan Agreement (Exhibit A) clearly calls for a three-point loan origination fee.” (Mot. at p. 6:27-28.) Mr. Lichter’s supporting declaration provides that “[o]n February 19, 2013, First Aspen Financial Corporation (under the name First Aspen Corporation) agreed to loan the sum of $40,000.00 to Chang B. Park under a ‘Loan Agreement & Escrow Instructions’, a true and correct copy of which is attached hereto as Exhibit A...” (Lichter Decl., ¶ 4.) The “Loan Agreement & Escrow Instructions” provide, inter alia, that “[t]he loan shall bear a THREE (3) point loan origination fee to be disbursed from the loan proceeds.” (Lichter Decl., ¶ 4, Ex. A.)

Defendant asserts that it “cannot be found to have breached the Loan Agreement by charging an agreed-upon loan origination fee,” and that “Ms. Park’s argument that the fee is ‘uncommon’ or ‘irregular’ provides no legal basis for alleging a breach of the Loan Agreement.” (Mot. at pp. 6:28-7:1; 7:5-6.) Defendant cites to Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 925, where the Court of Appeal noted that “[w]hen two parties make a contract, they agree upon the rules and regulations which will govern their relationship; the risks inherent in the agreement and the likelihood of its breach….Under such a scenario, it is appropriate to enforce only such obligations as each party voluntarily assumed, and to give him only such benefits as he expected to receive; this is the function of contract law…” (Internal quotations omitted.) Plaintiff does not appear to respond to the foregoing points in the opposition. Plaintiff does not appear to cite any legal authority to support her argument that allegedly “uncommon” “3-point loan fees” (Compl., p. 4.) agreed to by the parties constitute a violation of Plaintiff’s loan agreement.

Based on the foregoing, the Court finds that Defendant has met its initial burden of demonstrating that Plaintiff’s first cause of action for breach of contract is without merit. The Court does not find that Plaintiff has raised a triable issue of material fact as to this cause of action.

C. Second Cause of Action for “Violation of the Fair Debt Collection Practices (FDCP)”

In the second cause of action, Plaintiff alleges that “[t]he defendant’s trustee sale notice failure is the first FDCPA violation. According to the loan agreement, the defendant was supposed to send a notice of trustee sale to the land’s address and the plaintiff’s home postal address. The defendant reportedly delivered the notification to the unoccupied property, which had no one to receive it, instead of the plaintiff’s home postal address.” (Compl., pp. 4-5.)

In the motion, Defendant argues that “[a]s explained…[Defendant] did not fail to satisfy its obligation to mail the Notice of Trustee’s Sale to Ms. Park notwithstanding her failure to receive it.” (Mot. at p. 7:12-14.) Evidence proffered by Defendant in support of this point is discussed above in connection with the first cause of action. In the opposition, Plaintiff argues that Defendant failed to “properly notify Plaintiff,” (Opp’n at p. 4:16-17) but does not provide any evidence to support this argument.

Plaintiff further alleges in the second cause of action that “[t]he defendant charged irregular loan fees, the second FDCPA violation. The complainant claims First Aspen Corporation charged 3-point loan fees, which is uncommon in the sector.” (Compl., p. 5.) In the motion, Defendant asserts that “[w]ith regard to loan origination fees, the Act focuses on collection efforts such as the acquisition of location information (§ 1692b), communications in connection with debt collection (§ 1692c), harassment or abuse (§1692d), false or misleading representations (§ 1692e), and unfair practices (§ 1692f). The Act does not address the borrower’s agreement to pay loan original fees. Accordingly, the Act is inapplicable to the claims raised by Ms. Park against [Defendant].” (Mot. at p. 7:17-22.)[1] Plaintiff does not appear to respond to or dispute this point in the opposition.

Based on the foregoing, the Court finds that Defendant has met its initial burden of demonstrating that Plaintiff’s second cause of action for “violation of the fair debt collection practices (FDCP)” is without merit. The Court does not find that Plaintiff has raised a triable issue of material fact as to this cause of action.

In the third cause of action for fraud, Plaintiff alleges that “defendant, in cooperation with other parties, fraudulently manipulated the foreclosure and auction process to sell the property for a far lower price than intended. The plaintiff alleges fraud based on the defendant’s failure to notify the trustee sale and the land’s suspiciously low auction price.” (Compl., pp. 5-6.)

Plaintiff alleges that “[t]he defendant’s trustee sale notice failure is the first alleged deception…The defendant allegedly delivered the notification to the unoccupied property, which had no one to receive it, rather than the plaintiff’s home postal address.” (Compl., p. 6.) Plaintiff further alleges that “[t]he unusually low land auction price is the second suspected deception. The lawsuit claims that twenty years after buying the property for $400,000, it should have been worth $1,200,000 at foreclosure. The complainant claims fraud since the property was auctioned for $131,342.29. The plaintiff may allege that the defendant, maybe in conjunction with others, manipulated the foreclosure and auction process to artificially decrease the selling price of the land, enabling it to be acquired at a far lower price than its genuine worth.” (Compl., p. 6.)

In the motion, Defendant asserts that “[a]s explained in Part IV-A, supra, [Defendant] did not fail to satisfy its obligation to mail the Notice of Trustee’s Sale to Ms. Park notwithstanding her failure to receive it.” (Mot. at p. 8:1-3.) As discussed, evidence proffered by Defendant in support of this point is discussed above in connection with the first cause of action.

Defendant also asserts that “[t]he undisputed proof of the foreclosure process shows no misrepresentation that would depress the foreclosure sale price.” (Mot. at p. 8:10-12.) Defendant notes that in his supporting declaration, Mr. Dandrea states that “[t]he property that was described in First Aspen Financial Corporation’s Deed of Trust was sold to the highest bidder through a foreclosure sale on August 18, 2022, for $131,342.00.” (Dandrea Decl., ¶ 16.) Defendant also cites to Knapp v. Doherty (2004) 123 Cal.App.4th 76, 93, where the Court of Appeal noted that “[i]t is settled that a great disparity between the foreclosure price and the value of the property, by itself, is insufficient to set aside the sale. Inadequate price, even coupled with procedural irregularity, does not automatically render a trustee’s sale subject to attack. [M]ere inadequacy of price, absent some procedural irregularity that contributed to the inadequacy of price or otherwise injured the trustor, is insufficient to set aside a nonjudicial foreclosure sale.” (Internal quotations, citation, and emphasis omitted.)

In the opposition, Plaintiff argues that “[b]y failing to notify Plaintiff of the foreclosure and orchestrating the sale of the property at a suspiciously low price, Defendant acted with fraudulent intent to conceal the foreclosure proceedings from Plaintiff.” (Opp’n at pp. 4:26-5:1.) But Plaintiff does not provide any evidence that Defendant failed to notify Plaintiff of the foreclosure. In addition, Plaintiff does not provide any evidence to support the argument that Defendant intended to “conceal foreclosure proceedings from Plaintiff” by “orchestrating the sale of the property at a suspiciously low price.” (Opp’n at pp. 4:27; 5:1.) Although Plaintiff contends that “the property sold for approximately 10% of its estimated value” (Opp’n at p. 5:2) Plaintiff does not provide any evidence of what the subject property’s estimated value is.

Based on the foregoing, the Court finds that Defendant has met its initial burden of demonstrating that Plaintiff’s third cause of action for fraud is without merit. The Court does not find that Plaintiff has raised a triable issue of material fact as to this cause of action.

In the fourth cause of action, Plaintiff alleges that “defendant negligently handled the loan arrangement and foreclosure procedure. The plaintiff’s negligence claims center on the defendant’s trustee sale notice failure and irregular loan fees…The plaintiff claims that the loan arrangement obliged the defendant to send a notice of trustee sale to both the land’s address and the plaintiff’s home postal address. The defendant reportedly delivered the notification to the unoccupied property, which had no one to receive it, instead of the plaintiff’s home postal address.” (Compl., pp. 6-7.) Plaintiff further alleges that “[t]he defendant’s inconsistent loan fees are the second claimed misconduct. The complainant claims First Aspen Corporation charged 3-point loan fees, which is uncommon in the sector. The plaintiff may claim that the defendant was obliged to impose fair, reasonable, and industry-standard lending costs. The defendant may have broken this responsibility by imposing irregular loan costs, thus harming the plaintiff financially.” (Compl., p. 7.)

Defendant asserts that “[a]s explained…[Defendant] did not fail to satisfy its obligation to mail the Notice of Trustee’s Sale to Ms. Park notwithstanding her failure to receive it. Accordingly, no duty was breached by [Defendant] in connection with the notification of the foreclosure sale.” (Mot. at p. 8:19-22.) As discussed, evidence proffered by Defendant in support of this point is discussed above in connection with the first cause of action. Plaintiff does not provide any evidence that Defendant failed to send the subject notice of trustee’s sale to Plaintiff’s home address.

Defendant also argues that “[w]ith regard to the allegation of ‘irregular’ loan fees, there is no breach of a duty giving rise to a cause of action for negligence. The loan fees were agreed to by the parties, and Ms. Park’s payment of those fees was not the result of any negligence on the part of First Aspen Financial Corporation either as alleged or according to proof.” (Mot. at p. 8:22-26.) As discussed, the subject “Loan Agreement & Escrow Instructions” provide, inter alia, that “[t]he loan shall bear a THREE (3) point loan origination fee to be disbursed from the loan proceeds.” (Lichter Decl., ¶ 4, Ex. A.) Indeed, it is unclear to the Court how the existence of such fee is the result of any purported negligence by Defendant.

Based on the foregoing, the Court finds that Defendant has met its initial burden of demonstrating that Plaintiff’s fourth cause of action for negligence is without merit. The Court does not find that Plaintiff has raised a triable issue of material fact as to this cause of action.

“The equitable doctrine of unjust enrichment is based on the idea that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.” (City of Oakland v. Oakland Raiders (2022) 83 Cal.App.5th 458, 478 (internal quotations omitted).)

In the fifth cause of action, Plaintiff alleges that “[t]he defendant’s trustee sale notice failure is the first unjust enrichment claim. The plaintiff claims that the loan arrangement obliged the defendant to send a notice of trustee sale to both the land’s address and the plaintiff’s home postal address. The defendant reportedly delivered the notification to the unoccupied property, which had no one to receive, instead of the plaintiff’s home postal address.” (Compl., p. 8.) Plaintiff further alleges that “[t]he curiously low land auction price is the second part of the claimed unjust enrichment. The lawsuit claims that twenty years after buying the property for $400,000, it should have been worth $1,200,000 at foreclosure. The complainant claims unjust enrichment since the property was auctioned for $131,342.29.” (Compl., p. 8.)

Defendant asserts that “[a]s explained…[Defendant] did not fail to satisfy its obligation to mail the Notice of Trustee’s Sale to Ms. Park notwithstanding her failure to receive it. Accordingly, there was no act by [Defendant] that would constitute unjust enrichment in connection with the notification of the foreclosure sale.” (Mot. at p. 9:8-11.) As discussed, evidence proffered by Defendant in support of this point is discussed above in connection with the first cause of action. Plaintiff does not provide any evidence that Defendant failed to send the subject notice of trustee’s sale to Plaintiff’s home address.

Defendant also asserts that “[w]ith regard to Ms. Park’s claim concerning the ‘low’ sales price, California Trustee Services (as First Aspen Financial Corporation’s trustee) satisfied its obligation sell the property to the highest bidder…” (Mot. at p. 9:11-14.) As discussed, Plaintiff provides evidence that “[t]he property that was described in First Aspen Financial Corporation’s Deed of Trust was sold to the highest bidder through a foreclosure sale on August 18, 2022, for $131,342.00.” (Dandrea Decl., ¶ 16.) Defendant asserts that “[t]he undisputed proof of the foreclosure process shows no irregularity that would depress the foreclosure sale price.” (Mot. at p. 9:17-18.)

In the opposition, Plaintiff argues that “[t]he foreclosure sale of the property for $131,342.29, when its true market value was over $1,200,000, represents an unjust benefit obtained by Defendant…” (Opp’n at p. 5:26-27.) However, Plaintiff does not provide any evidence that the market value of the subject property was over $1,200,000.00. As discussed, Plaintiff does not provide any evidence in connection with the opposition.

Based on the foregoing, the Court finds that Defendant has met its initial burden of demonstrating that Plaintiff’s fifth cause of action for unjust enrichment is without merit. The Court does not find that Plaintiff has raised a triable issue of material fact as to this cause of action.

Based on the foregoing, Defendant’s motion for summary judgment is granted. The Court orders Defendant to file and serve a proposed judgment within 10 days of the date of this Order.

[1]“The Fair Debt Collection Practices Act regulates ‘debt collector[s].’ 15 U.S.C. §1692a(6); see 91 Stat. 874, 15 U.S.C. §1692 et seq.” (Obduskey v. McCarthy & Holthus LLP (2019) 586 U.S. 466, 468.)

CHANG B. PARK, Plaintiff, vs. FIRST ASPEN CORPORATION, et al., Defendants.	Case No.:	23STCV09979
	Hearing Date:	September 12, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Superior Court of California

County of Los Angeles

Department 50