Judge Theresa M. Traber, Case Number: 19STCV38851, Date: 2024-06-20 Tentative Ruling

Judge: Theresa M. Traber, Case: 19STCV38851, Date: 2024-06-20 Tentative Ruling

Case Number: 19STCV38851 Hearing Date: June 20, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: June 20, 2024 TRIAL DATE: September 3, 2024

CASE: Ana Liza Filio v. Statebridge Co., LLC et al.

CASE NO.: 19STCV38851

MOTION FOR SUMMARY JUDGMENT (x2)

MOVING PARTY: (1) Defendant Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust as Trustee for PNPMS Trust I; (2) Plaintiff Ana Liza Filio

RESPONDING PARTY(S): (1) Plaintiff Ana Liza Filio; (2) Defendant Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust as Trustee for PNPMS Trust I;

CASE HISTORY:

10/23/19: Complaint filed.
03/25/20: First Amended Complaint filed.
08/12/20: Second Amended Complaint filed.
11/09/20: Third Amended Complaint filed.
12/08/23: Joint stipulation entered dismissing Defendant Statebridge Co., LLC entirely and dismissing all remaining claims except the third cause of action for declaratory relief against Defendant Wilmington.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for fraud and breach of contract stemming from an allegedly wrongful foreclosure on a parcel of real property owned by Plaintiff.

Defendant Wilmington Savings Fund Society and Plaintiff Ana Liza Filio bring cross-motions for summary judgment pursuant to a joint stipulation.

TENTATIVE RULING:

Defendant’s Motion for Summary Judgment is DENIED.

Plaintiff’s Motion for Summary Judgment is GRANTED. The Court finds that the 2018 Repayment Agreement obligated Plaintiff to pay $10,000 on or before May 15, 2018, and to pay the remaining balance of $23,738.92 on or before April 15, 2021 without any particular repayment schedule. Consequently, Plaintiff did not breach the Agreement in April 2019 or thereafter, and Statebridge Co., LLC’s refusal to accept payment in July 2019 was improper. As a result, the Court finds that the Repayment Agreement remains in effect, and Plaintiff owes only the outstanding balance on the Repayment Agreement before this dispute arose, totaling $14,507.18.

DISCUSSION:

Defendant’s Motion for Summary Judgment

Defendant Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust as Trustee for PNPMS Trust I moves for summary judgment pursuant to the December 8, 2023 Joint Stipulation.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Procedural Objection to Motion

At the outset, Plaintiff asserts that Defendant’s motion for summary judgment is improper because Plaintiff is entitled to a declaration of her rights and obligations, even if that determination is adverse. Plaintiff’s sole authority for that position is Arroyo v. Regents of University of California, which states only that general demurrers are disfavored for declaratory relief claims because a plaintiff is entitled to a declaration of rights, even if those rights are adverse. (Arroyo v. Regents of University of California (1975) 48 Cal.App.3d 793, 795-96.) This authority has no bearing on a motion for summary judgment, especially where, as here, Defendant is not challenging Plaintiff’s entitlement to a determination of her rights and obligations, but rather is seeking an adverse determination of those rights and obligations. Plaintiff’s assertion is therefore without merit.

Plaintiff’s Evidentiary Objections

Plaintiff raises a series of evidentiary objections to Defendant’s supporting evidence. The Court rules on these objections as follows:

1. Declaration of Kristina M. Pelletier

Objection No. 2: OVERRULED. The transcripts are authenticated via the declaration describing the chain of custody of the underlying recordings, which are themselves described in the December 2020 Declaration of Amber Night Costello included in Defendant’s compendium of exhibits. Defendant’s responses to interrogatories do not make this evidence irrelevant, as Defendant’s position is that the agreement requires monthly payments on its face. This testimony is not hearsay.

Objection No. 3: OVERRULED. The transcripts are authenticated via the declaration describing the chain of custody of the underlying recordings, which are themselves described in the December 2020 Declaration of Amber Night Costello included in Defendant’s compendium of exhibits. Defendant’s responses to interrogatories do not make this evidence irrelevant, as Defendant’s position is that the agreement requires monthly payments on its face.

2. Declaration of Amber Night Costello

Objection No. 4: OVERRULED. The statement is not hearsay, nor is it ambiguous nor an improper conclusion: it is stipulated and undisputed that Plaintiff had not made payments on the loan between January 1, 2009, and May 15, 2018. The declarant is testifying as custodian of records, and personal knowledge is not required. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322, 324.) The Secondary Evidence Rule is not applicable as the testimony is offered to authenticate the transcripts, not to prove their contents.

3. Declaration of Stefanie Jeffries

Objection No. 9: SUSTAINED under the secondary evidence rule with respect to the contents of the letter. The document speaks for itself. OVERRULED with respect to personal knowledge that the letter was sent and authenticity of the document, as the declarant is testifying as custodian of records, and personal knowledge is not required. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322, 324.) Also OVERRULED as to relevance with respect to whether the letter was sent: this testimony is plainly relevant.

Objection No. 10: OVERRULED. This document is authenticated by the accompanying declaration, is not a conclusion, legal or otherwise, and is relevant. The document is not hearsay because it is not offered for the truth of its contents but rather to establish the existence of its contents.

Objection No. 11: SUSTAINED as an improper legal conclusion to the extent the testimony is offered to establish that Plaintiff was in default and SUSTAINED under the secondary evidence rule with respect to the contents of the May 7, 2019 notice. OVERRULED with respect to whether Statebridge received payments between March 29, 2019 and July 8, 2019. The declarant is testifying as custodian of records, and personal knowledge is not required. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322, 324.) The secondary evidence rule is not applicable here, and this portion of the testimony is not a conclusion, legal or otherwise. This testimony is also relevant on its face. Also OVERRULED with respect to personal knowledge that the letter was sent and authenticity of the document, as the declarant is testifying as custodian of records, and personal knowledge is not required. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322, 324.) Also OVERRULED as to relevance with respect to whether the letter was sent: this testimony is facially relevant.

Objection No. 12: OVERRULED with respect to the date of the document. The date of the document is not hearsay, is not a conclusion, and is facially relevant. The secondary evidence rule is inapplicable, and lack of personal knowledge is not a valid objection in this context.

As the remainder of the evidence to which Plaintiff objects is not material to this motion, the Court declines to rule on the balance of Plaintiff’s objections. (Code Civ. Proc. § 437c(q).)

Defendant’s Evidentiary Objections

Defendant raises several evidentiary objections to the Declaration of Ana Liza Filio in support of her opposition to the motion. The Court rules on these objections as follows:

Objection Nos. 1-3: OVERRULED. Defendant does not demonstrate how these statements contradict prior testimony by citation to the relevant evidence.

As the remainder of the evidence to which Defendant objects is not material to this motion, the Court declines to rule on the balance of Defendant’s objections. (Code Civ. Proc. § 437c(q).)

Stipulated Undisputed Facts & Procedural Posture

The parties bring cross-motions for summary judgment pursuant to a Joint Stipulation entered on December 8, 2023. That stipulation sets forth the undisputed factual history of this case as follows: On or around June 5, 2006, Plaintiff Filio and Bassiano Martinez purchased the property located at 4339 West 190^th Street, Torrance, CA 90504, APN 4084-024-078 as their primary residence for $850,000. (Separate Statement of Undisputed Material Fact No. 1; Joint Stipulation No.1(a)-(b).) This purchase was accomplished via a first, senior mortgage of $679,920 and a second junior mortgage of $169,980, with the remainder of the purchase price and closing costs paid by Plaintiff and Martinez out-of-pocket. (SSUMF No. 1; Joint Stipulation No.1(c).) The junior mortgage is secured by a Deed of Trust. (SSUMF No.1; Joint Stipulation No.1(d).) The original owner on both loans was WMC Mortgage Corp. (SSUMF No.1, Joint Stipulation No.1(e).)

Beginning on January 1, 2009, Plaintiff stopped making payments on the junior mortgage, and it is undisputed that no payments were made during the period through May 15, 2018. (Separate Statement of Disputed Fact No. 2.) Subsequently, Plaintiff filed for Chapter 7 federal bankruptcy protection which was discharged on October 14, 2011. (SSUMF No. 3.) Bassiano Martinez quitclaimed all his interest in the property to Plaintiff on June 7, 2017, leaving Plaintiff the sole owner. (SSUMF No. 4.) By April 2018, the servicer on the junior mortgage was Shellpoint Mortgage Servicing. (SSUMF No. 5.) On or about March 29, 2019, the servicing of the junior mortgage was transferred to Statebridge Co., LLC. (SSDF No. 10.) That same date, the junior mortgage was sold and the deed of trust assigned to Defendant Wilmington, who remains the owner of the junior loan. (SSUMF No. 11.) On or around May 15, 2018, Plaintiff and Shellpoint entered into an agreement for repayment of the junior mortgage. (SSUMF No. 8.) Pursuant to the stipulation, the parties agree that the sole claim to be resolved in this case is the third cause of action for declaratory relief, and the sole issue with respect to that claim is what amount, if any, is owed to Defendant on the second, junior mortgage. (Joint Stipulation No. 6.)

Obligations Under Repayment Agreement

Defendant argues that the 2018 Repayment Agreement set forth a schedule for repayment of the junior loan at a discount, and Plaintiff’s failure to comply with the payment plan voided the agreement, thereby causing Plaintiff to owe the full balance of the Loan at $168,077.69. The undisputed terms of the Repayment Agreement are, as relevant here:

1. Shellpoint is to receive proceeds in an amount not less than $33,738.92 on or before 4/15/2021. Proceeds must be remitted in certified funds and sent by overnight mail or by wire. The amount is calculated as a minimum. In the event that the net proceeds from the settlement exceed the minimum payoff amount, the excess proceeds must be remitted to Shellpoint. Upon receipt of certified funds, the debt will be considered to be fully satisfied for less than the amount due and no remaining deficiency balance will be owed.

2. 36 Payment(s) of $659.41 includes Release fee of $36.00, with 1^st installment of $10,000 on 5/15/2018 totaling $33,738.92 due by 4/15/2021.

3. This agreement is VOID if a payment is missed or if a payment is returned for insufficient funds (NSF).

(TAC Exh. B [emphasis in original].) Defendant contends that the Repayment Agreement obligated Plaintiff to comply with a strict monthly payment schedule. Plaintiff, in opposition, argues that the Agreement imposed no such schedule aside from the final April 15, 2021, due date. This is a question of contract interpretation.

The Court of Appeal for the Second District has described the “well established” rules for interpreting a contract in the context of a summary judgment motion, as follows:

“The interpretation of a contract is a judicial function. [Citation.] In engaging in this function, the trial court ‘give[s] effect to the mutual intention of the parties as it existed’ at the time the contract was executed. [Citation.] Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract's terms. [Citation.]” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-1126, 76 Cal.Rptr.3d 585 (Wolf).)

“The court generally may not consider extrinsic evidence of any prior agreement or contemporaneous oral agreement to vary or contradict the clear and unambiguous terms of a written, integrated contract. [Citations.] Extrinsic evidence is admissible, however, to interpret an agreement when a material term is ambiguous. [Citations.]” (Wolf, supra, 162 Cal.App.4th at p. 1126, 76 Cal.Rptr.3d 585; see also Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging (1968) 69 Cal.2d 33, 39-40, 69 Cal.Rptr. 561, 442 P.2d 641 [if extrinsic evidence reveals that apparently clear language in the contract is, in fact, “susceptible to more than one reasonable interpretation,” then extrinsic evidence may be used to determine the contracting parties’ objective intent].)

“The interpretation of a contract involves ‘a two-step process: First the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine “ambiguity,” i.e., whether the language is “reasonably susceptible” to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is “reasonably susceptible” to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step – interpreting the contract. [Citation.]’ [Citation.]” (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1351, 8 Cal.Rptr.3d 649 (Wolf II); [citations].)

“When there is no material conflict in the extrinsic evidence, the trial court interprets the contract as a matter of law. [Citations.] This is true even when conflicting inferences may be drawn from the undisputed extrinsic evidence [citations] or that extrinsic evidence renders the contract terms susceptible to more than one reasonable interpretation. [Citations.] If, however, there is a conflict in the extrinsic evidence, the factual conflict is to be resolved by the jury. [Citations.]” (Wolf, supra, 162 Cal.App.4th at pp. 1126-1127, 76 Cal.Rptr.3d 585; see id. at p. 1134, 76 Cal.Rptr.3d 585 [“that extrinsic evidence may reveal an ambiguity subjecting a contract to more than one reasonable interpretation does not mean resolution of that ambiguity is necessarily a jury question. Absent a conflict in the evidence, the interpretation of the contract remains a matter of law”].)

(Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432-33.)

“When a dispute arises over the meaning of contract language, the first question to be decided is whether the language is ‘reasonably susceptible’ to the interpretation urged by the party. If it is not, the case is over. If the court decides the language is reasonably susceptible to the interpretation urged, the court moves to the second question: what did the parties intend the language to mean? ... Thus, where contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further. If the contract is capable of more than one reasonable interpretation, it is ambiguous, and we apply the standard rules of interpretation in order to give effect to the mutual intention of the parties. In sum, courts must give a reasonable and commonsense interpretation of a contract consistent with the parties' apparent intent.” (Department of Forestry & Fire Protection v. Lawrence Livermore National Security, LLC (2015) 239 Cal.App.4th 1060, 1066 [internal quotation marks, ellipses, and citations omitted].)

In a case where the party moving for summary adjudication requests a ruling that adopts its contract interpretation over that of the opposing party, the Court’s first inquiry is whether the contract at issue is reasonably susceptible to the interpretations urged by the opposing party – here, Plaintiff. (Brown v. Goldstein, supra, 34 Cal.App.5th at 434.) Plaintiff argues that the Repayment Agreement did not require monthly payments, and, in fact, did not oblige Plaintiff to comply with any schedule beyond repayment of the reduced balance of $33,738.92 by April 15, 2021. As Plaintiff states, the Repayment Agreement does not expressly provide for monthly payments. (TAC Exh. B.) That said, the Agreement describes these payments as “installments” and states that it is void if a payment is missed. (Id. Nos. 2-3.) However, the Court independently observes that although the Agreement provides for 36 installments of $659.41 to account for the remaining balance, not including the $36.00 release fee or the $10,000 initial installment, the Agreement sets its due date as April 15, 2021, only 35 months from the May 15, 2018 date of execution, as stipulated by the parties. (See SSUMF No. 8; TAC Exh. B. No. 2.) The Court therefore concludes that the Repayment Agreement’s express terms are ambiguous and reasonably susceptible to Plaintiff’s interpretation: while the terms of the Agreement describe a series of installment payments, those same terms do not set forth any particular schedule and directly contradict Defendant’s contention that monthly payments were required, as the installments described in the Agreement could not satisfy the full balance within the time allowed if made on a monthly basis. The Court therefore turns to the extrinsic evidence presented by the parties to interpret this contract.

Defendant argues that the intention of the agreement was to establish a plan for Plaintiff to make a $10,000 down payment, followed by monthly payments over the next three years, in satisfaction of the obligation on the junior mortgage. In support of this position, Defendant principally relies on transcripts of a recorded phone call on May 2, 2018, between Plaintiff and Shellpoint’s representatives, in which Plaintiff initially offered to settle the debt for $10,000. (SSUMF No. 6; Declaration of Kristina M. Pelletier ISO Mot. Exh. D. p.5:21-6:7.) Shellpoint’s representative rejected that offer and countered with an offer to accept $10,000 as a down payment and allow Plaintiff to make 36 monthly payments for the remaining reduced balance of $23,738.92. (Id. p.8:6-10:2.) Defendant contends that the purpose of the written Repayment Agreement was to establish, in writing, the repayment plan described in this phone call. Prior negotiations and conversations may be relied upon to ascertain the true intention of the parties to the contract. (City of Los Angeles v. Anchor Cas. Co. (1962) 204 Cal.App.2d 175, 183.) As Plaintiff argues in her opposition, Defendant does not present any evidence of a deadline for each monthly payment That said, Plaintiff’s own evidence, offered for other purposes in her opposition, shows that she tendered four payments of $659.41 on April 15, 2019, May 15, 2019, June 15, 2019, and July 15, 2019. (SSDF No. 12.) Thus, Plaintiff’s subsequent course of performance suggests that she understood the agreement to require monthly payments on the 15^th of the month in the amount of $659.41. If that were the case, however, it was not possible for Plaintiff to make 36 monthly payments of the specified amount and satisfy the settlement balance by April 15, 2021 under the express terms of the agreement.

The Court is thus left with four potential interpretations of the contract, none of which give effect to all the express terms of the agreement and simultaneously reflect prior negotiations nor subsequent performance. The first interpretation is that the contract provides for 36 payments of $659.41 at no specified deadline, plus $10,000 on May 15, 2018, with the full balance of $33,738.92 due on April 15, 2021. This interpretation, advanced by Plaintiff, rests wholly on the express terms of the agreement, but limits the reach of provision 3 (voiding the agreement) to missing the initial payment, failure to meet the April 15, 2021 deadline, or making payments with insufficient funds. The second interpretation, advanced by Defendant, is that the contract provides for monthly payments on the 15^th of each month, which gives effect to the voiding provision for all payments and reflects prior negotiations and subsequent performance, but invalidates the April 15, 2021, deadline. The remaining interpretations either require that the agreement required 36 payments at regular intervals of less than a month, or 35 monthly payments of an amount greater than the specified $659.41. Neither of the latter interpretations are advanced by either party, and both simultaneously contradict express terms and some portion of the extrinsic evidence. Defendant, in reply, argues that Plaintiff’s interpretation should be disfavored because it renders the requirement for 36 payments and the provision voiding the agreement for missed payments meaningless. While the voidness provision retains some effect as to the initial payment, the final deadline, and payments with insufficient funds, Defendant’s argument is otherwise correct. But no interpretation, not even the interpretation Defendant offers, is entirely free of this flaw, and the Court is only obligated to give effect to every part of a contract “if reasonably practicable.” (Civ. Code § 1641.) In this case, doing so appears not merely impracticable, but impossible. No matter which interpretation the Court adopts, some ambiguity remains and, where an unresolved uncertainty remains, the Court is obliged to construe the contract most strongly against the party who caused that uncertainty. (Civ. Code § 1654.) In this instance, the drafting party is no longer involved in the case, but Defendant asserts its contention that the Repayment Agreement should be cancelled because Plaintiff did not comply with the payment schedule as the successor-in-interest to Shellpoint, who drafted the Agreement. The Court therefore must adopt the interpretation least favorable to Defendant’s position, i.e., that there was no requirement that the 36 payments of $659.41 be made on any particular schedule besides the April 15, 2021, deadline for full payment.

Compliance With Obligations Under Repayment Agreement

Defendant contends that Plaintiff breached the agreement by failing to make monthly payments between March 29, 2019 and Statebridge’s cancellation of the agreement as of June 21, 2019. (SSUMF Nos. 12, 14.) Defendant argues that this failure triggered the voiding provision of the Agreement, causing Plaintiff to owe the full balance of the junior loan. The Court does not and cannot construe the contract as requiring monthly payments, and, for that reason alone, Defendant’s argument fails. Even if the Court had adopted Defendant’s interpretation, moreover, the evidence in the record demonstrates a triable issue of fact as to whether Plaintiff failed to make timely payments on the agreement.

In advancing its position, Defendant argues that Statebridge did not receive any payments from Plaintiff between March 29, 2019 and July 8, 2019. (SSUMF No. 12.) According to Defendant, Statebridge sent a “Notice of Intent to Accelerate” on May 7, 2019 informing Plaintiff that, according to Statebridge, the underlying loan was in default and due. (SSUMF No. 13.) On June 21, 2019, Statebridge sent Plaintiff a follow-up letter claiming that she had failed to satisfy her obligations under the Repayment Agreement. (SSUMF No. 14.) In opposition, Plaintiff states that she authorized four payments in the amount of $659.41 on April 15, May 15, June 14, and July 15, 2019 with Shellpoint, before the March 29, 2019 transfer of ownership and servicing. (SSDF No. 12.) Plaintiff contends that she did not receive notice of the transfer of servicing to Statebridge until June 2019. (SSDF No. 10.) Plaintiff contends that she did not receive the Notice of Intent to Accelerate until early June 2019, and admits that she received the letter claiming she had breached the Repayment Agreement “shortly after” June 21, 2019. (SSDF Nos. 13-14.) Plaintiff argues that, based on this evidence, she timely tendered monthly payments in the specified amount, well in advance of their due dates, and the failure of Shellpoint, Statebridge, and Defendant to deduct those amounts does not create a breach on Plaintiff’s part. (See Civ. Code § 1512.)

In reply, Defendant claims that Statebridge attempted to call Plaintiff on multiple occasions to discuss the Loan and her payments, and that Plaintiff has no evidence that the letters described were not sent. Neither contention is material: by Defendant’s own admission, Statebridge was not able to contact Plaintiff by telephone. Moreover, the sending of letters is not sufficient to defeat evidence that Plaintiff did not receive those letters in time to cure her putative breach. Defendant also argues that Plaintiff’s declaration in support of her opposition contradicts her prior sworn testimony regarding whether she received notice of the transfer from Statebridge, but that assertion is not supported by citation to relevant evidence, although deposition testimony from Plaintiff on that subject is attached as Exhibit 2 to the Reply. Even in that deposition, however, Plaintiff categorically states that she did not recognize the transfer letter shown to her and did not recall receiving it. (Defendant’s Reply Exh. 2.) Thus, Plaintiff’s argument is consistent with her prior testimony, rather than contradicting it. Similarly immaterial is Defendant’s citation to correspondence from Plaintiff’s former counsel dated August 8, 2019, stating that she received notice of the transfer on or about April 9, 2019. (See Defendant’s Reply Exh. A.) This correspondence is not competent evidence because it does not establish a foundation for the conclusion that Plaintiff received that notice on April 9, nor does it establish how the declarant had this knowledge. Finally, to the extent Defendant contends that Plaintiff concedes that she was aware of the transfer before the putative June 15, 2019, payment deadline, the June 21 Notice of Breach in Defendant’s moving papers cites the April payment as the point of breach. (See Jeffries Decl. Exh. G.) Thus, Defendant’s own evidence suggests that the failure to make the June payment was of no consequence because Plaintiff was already in breach.

The evidence thus set forth demonstrates that, even if Plaintiff were obligated to make monthly payments under the Repayment Agreement, there is a triable issue of fact as to whether Plaintiff properly tendered those payments and whether Defendant, its servicer, or the servicer of its predecessor in interest failed to accept those payments when they were authorized. Defendant has thus failed to establish that Plaintiff cannot prevail on the third cause of action for declaratory relief and has not demonstrated that Plaintiff must pay the full amount due on the loan.

Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

Plaintiff’s Motion for Summary Judgment

Plaintiff moves for summary judgment on the third cause of action for declaratory relief, seeking a determination that the Repayment Agreement is in full force and effect and the amount owed is $14,507.18, less any attorney’s fees and costs to which Plaintiff might be entitled.

Legal Standard for Summary Adjudication by Plaintiff

As to each claim as framed by the complaint, a plaintiff moving for summary judgment satisfies the initial burden to show that there is no defense to a claim by proving each element of the cause of action entitling the party to judgment. (Code Civ Proc. § 437c(p)(1).) 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.) The lack of opposition is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant’s Evidentiary Objections

Defendant raises several evidentiary objections to the Declaration of Ana Liza Filio in support of her motion. The Court rules on these objections as follows:

Objection Nos. 1-3: OVERRULED. Defendant does not demonstrate how these statements contradict prior testimony by citation to the relevant evidence.

As the remainder of the evidence to which Defendant objects is not material to this motion, the Court declines to rule on the balance of Defendant’s objections. (Code Civ. Proc. § 437c(q).)

Plaintiff’s Evidentiary Objections

Plaintiff asserts the same evidentiary objections as those asserted with respect to Defendant’s motion, except for Objections Nos. 25 through 27, which pertain to evidence not in Defendant’s moving papers on that motion. The Court therefore adopts its rulings -- or lack thereof -- on Objections Nos. 1 through 24 above as if set forth fully herein.

With respect to the Declaration of Kristina M. Pelletier in support of the opposition to this motion, the Court rules as follows:

Objection No. 25: OVERRULED. Not hearsay, facially relevant, and does not lack for authentication or personal knowledge. SUSTAINED with respect to testimony of its contents under the secondary evidence rule. The document speaks for itself.

Objection No. 26: OVERRULED. Does not lack authentication. Subject to the opposing party statement exception for hearsay. This exhibit is not offered to prove the truth of the underlying letter’s contents but to establish its receipt. Facially relevant, notwithstanding any deficiency in Mr. Weinberg’s knowledge of when the letter was received, which is not an objection asserted here.

Objection No. 27: OVERRULED. The testimony is facially relevant even though it contradicts Defendant’s argument.

Effect of Repayment Agreement

Plaintiff seeks a determination that the 2018 Repayment Agreement is in full force and effect, based on the same arguments asserted in opposition to Defendant’s motion for summary judgment. For the reasons stated above in connection with Defendant’s motion, the Court concurs. The Court is obliged to construe the Repayment Agreement as not requiring repayment according to any particularized schedule, and, therefore, Statebridge was not entitled to declare the Repayment Agreement void for failure to timely pay installments between March 29, 2019 and July 8, 2019. Moreover, Defendant’s evidence is substantively identical to the evidence offered on its own motion and does not demonstrate, even under a favorable construction as a party opposing summary judgment, that Plaintiff had notice of the transfer in time to ensure payments were received for April of 2019 before Statebridge elected to cancel the Agreement.

Balance Owed on Agreement

Plaintiff also seeks a determination that the balance owed on the agreement is $14,507.18. The undisputed facts establish that Plaintiff sent and Shellpoint deposited a total of $16,594.10. (Plaintiff’s Separate Statement of Undisputed Material Facts Nos. 25-35; Defendant’s Separate Statement of Disputed Facts Nos. 25-35.) The undisputed facts also establish that Plaintiff sent Statebridge a check for $2,637.64 on July 3, 2019, which was deposited. (Id. No. 36.) Statebridge sent Plaintiff a check for that same amount on November 15, 2019, purporting to refund the July 3, 2019 payment, but Plaintiff did not deposit that check. (Id. No. 37.) Applying this sum to the undisputed total deposited by Shellpoint, the facts establish that Plaintiff paid a total of $19,231.74 on the Repayment Agreement, leaving a balance, as Plaintiff contends, of $14,507.18. As Defendant does not dispute Plaintiff’s calculation, the Court finds that Plaintiff has demonstrated that the balance owed on the agreement is $14,507.18.

As to interest, Plaintiff contends that she does not owe interest on the Repayment Agreement because she was not in breach as a matter of law. Defendant does not contest this argument except to claim that Plaintiff was in breach of the agreement. As the Court has found that Plaintiff did not breach the agreement, Plaintiff has demonstrated that she is not obligated to pay any interest on the balance.

Defendant’s Affirmative Defenses

Plaintiff also seeks, in the alternative, summary adjudication of Defendant’s affirmative defenses. As the parties agree that the sole issue remaining in the case is the balance owed on the loan, the Court finds that this request is mooted by the Joint Stipulation.

Alternative Motion in Limine

Plaintiff also moves in the alternative for an in limine order that the Court’s finding on these motions shall bind the parties at trial. This is a request for summary judgment or summary adjudication, and no such order is required.

Attorney’s Fees and Costs

Plaintiff also requests that the Court determine Plaintiff’s entitlement to attorney’s fees and costs as part of this motion. Attorney’s fees and costs are not issues subject to a motion for summary judgment or summary adjudication under Code of Civil Procedure section 437c. The Court therefore declines to rule on these issues without prejudice to a separate, procedurally compliant motion for attorney’s fees and costs.

CONCLUSION:

Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

Plaintiff’s Motion for Summary Judgment is GRANTED. The Court finds that the 2018 Repayment Agreement obligated Plaintiff to pay $10,000 on or before May 15, 2018, and to pay the remaining balance of $23,738.92 on or before April 15, 2021 without any particular repayment schedule. Consequently, Plaintiff did not breach the Agreement in April of 2019 or thereafter, and Statebridge Co., LLC’s refusal to accept payment in July 2019 was improper. As a result, the Court finds that the Repayment Agreement remains in effect, and Plaintiff owes only the outstanding balance on the Repayment Agreement before this dispute arose, totaling $14,507.18.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: June 20, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.