Judge: Theresa M. Traber, Case: 20STCV46939, Date: 2022-12-08 Tentative Ruling

Case Number: 20STCV46939    Hearing Date: December 8, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 8, 2022                  TRIAL DATE: January 17, 2023

CASE:                         7911 Oceanus, LLC et al. v. The Evergreen Advantage, LLC, et al.

CASE NO.:                 20STCV46939           

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:               Defendant The Evergreen Advantage

RESPONDING PARTY(S): Plaintiffs 7911 Oceanus, LLC, Raquel Ohnona, Joe G. Garcia

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action, filed on December 8, 2020, for wrongful foreclosure, quiet title, infliction of emotional distress, and fraudulent concealment. Plaintiffs seek to unwind a foreclosure sale which they contend was unlawful and invalid.

Defendant The Evergreen Advantage moves for summary judgment, or, in the alternative, summary adjudication on each cause of action asserted against it.

TENTATIVE RULING:

            Defendant’s Motion for Summary Judgment is DENIED.

            Defendant’s Motion for Summary Adjudication is GRANTED IN PART as to the second cause of action and otherwise DENIED.

DISCUSSION:

Defendant The Evergreen Advantage moves for summary judgment, or, in the alternative, summary adjudication on each cause of action asserted against it.

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Defendant’s Requests for Judicial Notice

            Defendant requests that the Court take judicial notice of (1) the Deed of Trust recorded on February 11, 2020 as Document No. 20200169823 in the Official Records of Los Angeles County; (2) the Assignment of Deed of Trust recorded on April 6, 2020 as Instrument No. 20200384257 in the Los Angeles County Recorder’s Office; (3) the Notice of Default Recorded on May 19, 2020 as Instrument No. 20200547917 in the Los Angeles County Recorder’s Office; (4) the Notice of Trustee’s Sale recorded on August 28, 2020 as Instrument No. 20201019771 in the Los Angeles County Recorder’s Office; and (5) the Trustee’s Deed Upon Sale recorded on November 20, 2020 as Instrument No. 20201497833 in the Los Angeles County’s Recorder’s Office.

            Defendants’ requests are GRANTED pursuant to Evidence Code sections 452(c) (official acts) and (h) (matters not reasonably subject to dispute and readily subject to verification by resort to sources of reasonably indisputable accuracy.)

Motion for Summary Judgment

            As Defendant has not established that it is entitled to summary adjudication on each cause of action asserted against it, Defendant’s Motion for Summary Judgment is DENIED  

Motion for Summary Adjudication

            In addition to seeking summary judgment, Defendant moves for summary adjudication of each cause of action asserted against it.

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.)

Supplemental Filings

            At the initial hearing on this motion on November 4, 2022, the Court ordered that Defendant file and serve a procedurally compliant Separate Statement of Undisputed Material Fact and ordered new opposition and reply briefing in response to the amended Separate Statement. The parties have complied with the Court’s order. However, in reviewing the amended Separate Statements, the Court notes that Defendant has included not only statements of fact, but extensive legal arguments that are more properly set forth in the motion itself. Indeed, a review of the papers shows that Defendant simply copied the same argument from the motion into the separate statement. (See, e.g, Motion p. 22:25-26:13; Separate Statement of Undisputed Material Fact “SSUMF” No. 5.) Plaintiffs have done the same. (See, e.g., Opposition p. 4:15-5:2; Separate Statement of Disputed Fact “SSDF” No. 5.) The purpose of the separate statements is to permit the Court to determine what facts, if any, remain in dispute, and whether those facts are material to the disposition of the issue. (See Cal. Rules of Court Rule 3.1350(d)(2); (f)(3).) Extraneous arguments such as those inserted by the parties here in the separate statements are not only procedurally non-compliant, they are also a hindrance to this Court’s ability to resolve this matter. The Court is neither obliged nor inclined to do the parties’ work for them in determining what facts are relevant and material, especially where, as here, the parties have already had an additional opportunity to prepare procedurally compliant filings.

            As Defendant clearly sets forth admissible evidence showing that Plaintiffs cannot prevail on their claims only as to the second cause of action for breach of the implied covenant and good faith and fair dealing, the Court will address the merits of that cause of action only. As to the remaining causes of action, because Defendant’s moving papers are so procedurally defective, the Court declines to address the merits of the remainder of Defendant’s motion.

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Second Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing

Defendant moves for summary adjudication on the second cause of action for breach of the implied covenant of good faith and fair dealing.

A claim for breach of the covenant of good faith and fair dealing “is nothing more than a cause of action for breach of contract.” (Habitat Trust for Wildlife Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1344.)

To state a cause of action for breach of contract, a plaintiff must plead the contract, the plaintiff’s performance of the contract or excuse for nonperformance, Defendant’s breach, and finally the resulting damage. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458.) Further, the complaint must indicate whether the contract is written, oral, or implied by conduct. (Code Civ.Proc. § 430.10(g).) General allegations stating that defendants violated a contract are insufficient, and plaintiffs must state facts showing a breach. (Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5-6.) For breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Otworth v. Southern Pac. Transportation Co., supra, 166 Cal.App.3d at 459.)

Defendant contends that Plaintiffs cannot prevail on this cause of action because Plaintiffs have admitted, as alleged in the Complaint, that they were in default on the mortgage and have set forth no excuse for nonperformance. Plaintiffs make no reference to this contention in their opposition briefing and concede that no payments were made on the Note, Loan, and Deed of Trust. (SSDF No. 13.) Defendant has therefore demonstrated that Plaintiff cannot prevail on this cause of action, and Plaintiffs have therefore not shown that there is a triable issue of fact on this issue.

Accordingly, Defendant’s Motion for Summary Adjudication is GRANTED as to the second cause of action.

            CONCLUSION:

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

            Defendant’s Motion for Summary Adjudication is GRANTED IN PART as to the second cause of action and otherwise DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: December 8, 2022                               ___________________________________

                                                                                    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.