Judge Walter P. Schwarm, Case 30-2021-01196831 2022-12-20 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01196831, Date: 2022-12-20 Tentative Ruling

Defendant’s (Hai Tran) Motion for Summary Judgment, in the Alternative, Motion for Summary Adjudication (Motion), filed on 7-14-22 under ROA No. 131, is DENIED.

The court GRANTS Defendant’s Request for Judicial Notice (RJN), filed on 7-14-22 under ROA No. 123, pursuant to Evidence Code section 452, subdivisions (c) and (h). (See, (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.4th 919, 939, footnote 13.)

The court DENIES Defendant’s Supplemental Request for Judicial Notice (SRJN), filed on 10-4-22 under ROA No. 164, as immaterial to the court’s decision set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)

Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that 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 that cause of action. 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.”

Code of Civil Procedure section 437c, subdivision (f), provides, “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 not 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 of damages, or an issue of duty.”

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in Aguilar; Footnotes 13 and 14 omitted.)

Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)

Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757, provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”

Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir), states, “We offer two observations about this footnote. The first is that it ignores the advice from the leading practice treatise: ‘PRACTICE POINTER: [¶] ... [¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ [Citation.]” (Id. at p. 252; Emphasis in Nazir.)

Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 (Laabs), provides, “ ‘The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’ [Citation.] ‘To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]’ [Citation.] ‘[T]he pleadings “delimit the scope of the issues” to be determined and “[t]he complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action.” [Citation.] [Plaintiff's] separate statement of material facts is not a substitute for an amendment of the complaint. [Citation.]’ [Citation.]”

Before addressing the issues, the court notes that the operative pleading is Plaintiff’s (Pauline P. Nguyen) First Amended Complaint (FAC) filed on 5-3-21 under ROA No. 40.

Issue No. 1—Nguyen’s First Cause of Action for Breach of Contract has not merit:

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. [Citation.]” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

The Motion states, “Nguyen’s breach of contract cause fails based on the application of the law to the undisputed facts. The undisputed evidence shows that Tran charged no more than 10% simple interest on some of the monies lent.” (Motion; 10:23-25.) Plaintiff’s Opposition to Defendant Hai Tran’s Motion for Summary Adjudgment/Summary Adjudication (Opposition), filed on 12-6-22 under ROA No. 173, responds, “. . . Nguyen alleges that she was excuses from any performance because the contract was illegal on its face due to a 12% interest rate charge.” (Opposition; 11:10-12.)

Initially, the court notes that the FAC does not directly plead that Plaintiff’s performance was excused because the contract was illegal. (FAC, ¶¶ 43-50.) The FAC pleads, “Per the terms of the agreement Defendant Tran had only bargained to charge Plaintiff in accordance with the Note that states: ‘Should interest not be so paid, it shall thereafter bear like interest as the principal, but such unpaid interest so compounded shall not exceed an amount equal to simple interest on the unpaid principal at the maximum rate permitted by law.’ [¶] Thus, Plaintiff alleges Lender was in violation of this portion of the clause. . . . [¶] Finally, Plaintiff alleges that in accordance with the agreement Plaintiff should have been provided updated balances owed so that the parties could accurately keep track of the money owed. Plaintiff alleges that the lack of consistent statements reflecting the loan balance is a breach of the agreement.” (FAC, ¶¶ 46, 47, and 49.) Although the FAC does not directly plead that Plaintiff’s performance was excused, the court will address the issues based on the facts contained in Defendant’s Separate Statement (DSS) filed on 7-14-22 under ROA No. 121, and Plaintiff’s Separate Statement (PSS) filed on 12-6-22 under ROA No. 174.

The “Note Secured by Deed of Trust Balloon Note (Interest Only)” (Note), states in part that Plaintiff promised to pay Defendant “. . . “the sum of ONE HUNDRED SIXTY FIVE THOUSAND DOLLARS AND ZERO CENT ($165,000.00) with interest FROM OCT 15TH 2014 on the amounts of principal remaining from time to time unpaid, until said principal sum is paid, at the rate of 12.000% per cent, per annum.” (Tran Decl., ¶ 5 and Exhibit 1.) Plaintiff does not dispute that Plaintiff executed the Note or the Deed of Trust (DOT). (PSS Nos. 1 and 2; Emphasis and uppercase in Note.)

Cal. Const. art. XV, § 1, Section 1 states: “The rate of interest upon the loan or forbearance of any money, goods, or things in action, or on accounts after demand, shall be 7 percent per annum but it shall be competent for the parties to any loan or forbearance of any money, goods or things in action to contract in writing for a rate of interest: [¶] (1) For any loan or forbearance of any money, goods, or things in action, if the money, goods, or things in action are for use primarily for personal, family, or household purposes, at a rate not exceeding 10 percent per annum; provided, however, that any loan or forbearance of any money, goods or things in action the proceeds of which are used primarily for the purchase, construction or improvement of real property shall not be deemed to be a use primarily for personal, family or household purposes . . . .”

Civil Code Section 1916.1 states, “The restrictions upon rates of interest contained in Section 1 of Article XV of the California Constitution shall not apply to any loan or forbearance made or arranged by any person licensed as a real estate broker by the State of California, and secured, directly or collaterally, in whole or in part by liens on real property. For purposes of this section, a loan or forbearance is arranged by a person licensed as a real estate broker when the broker (1) acts for compensation or in expectation of compensation for soliciting, negotiating, or arranging the loan for another, (2) acts for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business for another and (A) arranges a loan to pay all or any portion of the purchase price of, or of an improvement to, that property or business or (B) arranges a forbearance, extension, or refinancing of any loan in connection with that sale, purchase, lease, exchange of, or an improvement to, real property or a business, or (3) arranges or negotiates for another a forbearance, extension, or refinancing of any loan secured by real property in connection with a past transaction in which the broker had acted for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business. The term “made or arranged” includes any loan made by a person licensed as a real estate broker as a principal or as an agent for others, and whether or not the person is acting within the course and scope of such license.”

Ghirardo v. Antonioli (1995) 8 Cal. 4th 791, 798–799 (Ghirardo), explains, “The essential elements of usury are: (1) The transaction must be a loan or forbearance; (2) the interest to be paid must exceed the statutory maximum; (3) the loan and interest must be absolutely repayable by the borrower; and (4) the lender must have a willful intent to enter into a usurious transaction. [Citation.] The element of intent is narrow. ‘[T]he intent sufficient to support the judgment [of usury] does not require a conscious attempt, with knowledge of the law, to evade it. The conscious and voluntary taking of more than the legal rate of interest constitutes usury and the only intent necessary on the part of the lender is to take the amount of interest which he receives; if that amount is more than the law allows, the offense is complete.’ [Citation.] Intent is relevant, however, in determining the true purpose of the transaction in question because ‘... the trier of fact must look to the substance of the transaction rather than to its form. . . . “[I]t is for the trier of the fact to determine whether the intent of the contracting parties was that disclosed by the form adopted, or whether such form was a mere sham and subterfuge to cover up a usurious transaction.” ’ [Citations.] A transaction is rebuttably presumed not to be usurious. [Citations.] The borrower bears the burden of proving the essential elements of a usurious transaction. [Citations.]” (Italics in Ghirardo.)

Although the Note provides for a 12% interest rate, Defendant has provided evidence that Defendant effectively charged no more than a 10% interest rate. (Tran Decl., ¶¶ 20-25.) This evidence is sufficient to carry Defendant’s initial burden of demonstrating that Defendant did not breach the note by charging an interest rate that exceeded the maximum rate permitted by law.

Plaintiff’s evidence, however, creates a triable issue of material fact as to whether Defendant charged an interest in excess of the maximum rate permitted by law. At Defendant’s deposition, Defendant was asked, “. . . the constitutional usury law in California states you can only charge 10 percent on loans, but you charged 12 percent here. Why did you do that.” (Martinez Decl., ¶ 2 and Exhibit 10 (Defendant’s Depo; 36:16-19.).) Defendant responded, “I didn’t know at the time. . . .” (Martinez Decl., ¶ 2 and Exhibit 10 (Defendant’s Depo; 36:25.).) When asked, “Did you know that there is a maximum of interest rate that you can charge on a loan like this?,” Defendant replied, “I didn’t know at that time. Now I know, but at that time I don’t know.” (Martinez Decl., ¶ 2 and Exhibit 10 (Defendant’s Depo; 37:5-12.).) At Eric Tran’s deposition, Eric Tran was asked, “. . . you testified that around April of 2017 you discovered that the 12 percent was improper or illegal, right?” (Martinez Decl., ¶ 3 and Exhibit 11 (Eric Tran Depo; 33:17-19.).) Eric Tran responded, “Correct.” (Martinez Decl., ¶ 3 and Exhibit 11 (Eric Tran Depo; 33:21.).) Plaintiff’s evidence is sufficient to create a triable issue of material fact as to whether Defendant charged an interest rate that exceeded the maximum permitted by law.

Defendant’s Reply (Reply), filed on 12-15-22 under ROA No. 193, states, “The loan is exempted from the usury law because it was arranged by a California-licensed real estate broker, Eric Tran. (Eric Tran Dec., generally; Martinez Dec., Ex. 11: p. 13:20-25; Cal. Const. Art. XV, § 1; Civ. Code, § 1916.1)” (Reply; 3:13-15.) Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538 (Jay) states, “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion. ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . .’ and if permitted, the other party should be given the opportunity to respond. [Citations.] The same rule has been noted in other contexts as well. [Citation.] [¶] This rule is based on the same solid logic applied in the appellate courts, specifically, that ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citations.]”

The court declines to consider this argument raised for the first time by Defendant in his Reply brief because such consideration would deprive Plaintiff of an opportunity to counter the argument. Even if the court were to consider this contention, Defendant has not submitted any evidence to show that Eric Tran is a licensed real estate broker. (PSS Nos. 1-15.) Defendant did not designate Eric Tran’s status as a real estate broker as a material fact. (PSS Nos. 1-15.) Instead, Defendant relies on declaration of Plaintiff’s counsel, Mark S. Martinez who attaches a portion of Eric Tran’s deposition testimony in which Eric Tran testified, “I am a real estate broker . . . .” (Martinez Decl., ¶ 3 and Exhibit 11 (Eric Tran Depo; 13:20.).) Further, Civil Code Section 1916.1 provides that: “For purposes of this section, a loan or forbearance is arranged by a person licensed as a real estate broker when the broker (1) acts for compensation or in expectation of compensation for soliciting, negotiating, or arranging the loan for another . . .” Defendant has not submitted any evidence to show that Eric Tran acted for compensation or in expectation of compensation in arranging the loan. Therefore, Defendant has not met the requirements for Civil Code Section 1916.1.

Finally, Plaintiff’s evidence creates a triable issue of material fact as to whether Defendant provided Plaintiff with loan statements. (PSS No. 15; Nguyen Decl., ¶¶ 11 and 16 and Exhibit 7.)

Based on the above, the court DENIES the Motion for Summary Adjudication as to Issue No. 1.

Issue No. 2—Nguyen’s Second Cause of Action for Wrongful Foreclosure has no merit:

“Wrongful foreclosure is a common law tort claim. ‘The elements of a wrongful foreclosure cause of action are: “ ‘(1) [T]he trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.’ ” ’ [Citations.]” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 525 (Turner).) “Courts have applied equitable exceptions to the tender rule, such as: ‘(1) where the borrower's action attacks the validity of the underlying debt, tender is not required since it would constitute affirmation of the debt; [citations] (2) when the person who seeks to set aside the trustee's sale has a counter-claim or set-off against the beneficiary, the tender and the counter-claim offset each other and if the offset is greater than or equal to the amount due, tender is not required; [citations] (3) a tender may not be required if it would be “inequitable” to impose such a condition on the party challenging the sale; [citations] (4) tender is not required where the trustor's attack is based not on principles of equity but on the basis that the trustee's deed is void on its face (such as where the original trustee had been substituted out before the sale occurred)[;] [citations] [ (5) ] when the loan was made in violation of substantive law, or in breach of the loan agreement or an agreement to modify the loan[;] [citations] [and (6) ] when the borrower is not in default and there is no basis for the foreclosure [citations].’ [Citation.]” (Id., at pp. 525-526.)

The Motion asserts, “The wrongful foreclosure cause fails because it is premised on the ‘overcharge’ allegations dispelled above. The cause also fails as a matter of law based on Nguyen’s failure to rescind the transaction, tender the indebtedness, and on account of the unlawful detainer judgment against her.” (Motion; 11: 24-26.) The court has found that there is a triable issue of material fact as to whether Defendant overcharged Plaintiff in terms of the interest. As discussed above in Issue No. 1, Plaintiff’s evidence creates a triable issue of material fact as to whether Defendant charged a 12% interest rate up until 2017.

As to Defendant’s argument that Plaintiff failed to rescind the transaction, Defendant has not provided any authority for that rescission is required to maintain a wrongful foreclosure claim.

As to Defendant’s contention that Plaintiff failed to tender the indebtedness, the Opposition asserts that the tender element is excused under exception numbers 1, 2 and 5 as provided by Turner. (Opposition; 15:19.) Here, at a minimum, exception number 5 applies because there is a triable issue of material fact as to whether the interest rate of 12% violates California’s usuary laws. Thus, Plaintiff’s evidence shows a triable issue of material fact as to whether Plaintiff’s tender was excused.

The Reply states, “The wrongful foreclosure claim is indisputably barred by issue preclusion/collateral estoppel.” (Reply; 8:21.) Again, under Jay, the court declines to consider this argument raised for the first time by Defendant in his Reply brief because such consideration would deprive Plaintiff of an opportunity to counter the argument. The Motion did not raise the issue of issue preclusion or collateral estoppel as a basis to support Defendant’s contention that the wrongful foreclosure action had no merit. (Motion; 11:6-27.)

Even if the court were to consider this contention, Defendant has carried Defendant’s initial burden of demonstrating that issue preclusion or collateral estoppel applies. “Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.]” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th at 813, 824 (DKN); Italics in DKN.)

In support of its contention that the unlawful detainer judgment has res judicata effect (PSS No. 16), Defendant cites to Malkoskie v. Option One Mortg. Corp. (2010) 188 Cal.App.4th 968, 973-974 (Malkoskie), which states, “An unlawful detainer action is a summary proceeding ordinarily limited to resolution of the question of possession. [Citation.] Accordingly, it is true that any judgment arising therefrom generally is given limited res judicata effect. [Citation.] However, a ‘qualified exception to the rule that title cannot be tried in unlawful detainer is contained in Code of Civil Procedure section 1161a, which extends the summary eviction remedy beyond the conventional landlord-tenant relationship to include certain purchasers of property. . . .’ [Citation.] Code of Civil Procedure section 1161a, subdivision (b)(3) (section 1161a), provides an unlawful detainer action may be filed ‘[w]here the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust . . . and the title under the sale has been duly perfected.’ Furthermore, under California law a ‘judgment entered without contest, by consent or stipulation, is usually as conclusive a merger or bar as a judgment rendered after trial. [Citations.]”

In support of his argument of res judicata, Defendant has submitted the “Judgment – Unlawful Detainer” (Judgment). (RJN, Exhibit 6.) This Judgment does not show that the unlawful detainer action litigated the wrongful foreclosure theory advanced in the FAC. Defendant has not carried its initial burden of demonstrating that the unlawful detainer action resolved and determined Plaintiff’s wrongful foreclosure theory.

For the above, reasons, the court DENIES the Motion for Summary Adjudication as to Issue No. 2.

Issue No. 3—Nguyen’s Third Cause of Action for Quiet Title has not merit:

The Motion states, “The quiet cause fails because it is premised on the ‘overcharge’ allegations dispelled above.” (Motion; 12:6-7.) The court has found that there is a triable issue of material fact as to whether Defendant overcharged Plaintiff in terms of the interest. As discussed above in Issue No. 1, Plaintiff’s evidence creates a triable issue of material fact as to whether Defendant charged a 12% interest rate up until 2017.

Therefore, the court DENIES the Motion for Summary Adjudication as to Issue No. 3.

Issue No. 4—Nguyen’s Fourth Cause of Action for Intentional Misrepresentation has no merit:

“The elements of fraud that will give rise to a tort action for deceit are: ‘ “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” ’ [Citation.] As explained below, there is no requirement to show pecuniary damages when fraud is the basis for a defense to a petition to compel arbitration, rather than a suit for damages.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 (Engalla).)

The Motion states, “The intentional misrepresentation cause fails because it is premised on the ‘overcharge’ allegations dispelled above. Further, Nguyen has no evidence to meet the required elements.” (Motion; 12: 14-15.)

The court has found that there is a triable issue of material fact as to whether Defendant overcharged Plaintiff in terms of the interest. As discussed above in Issue No. 1, Plaintiff’s evidence creates a triable issue of material fact as to whether Defendant charged a 12% interest rate up until 2017. As to Defendant’s contention that Plaintiff has no evidence to meet the required elements, Defendant has not provided any argument in support of his contention that Plaintiff cannot meet the elements of the intentional misrepresentation claim. Therefore, Defendant has failed to meet Defendant’s initial burden on this issue.

For the first time, the Defendant contends by way of the Reply, that “The fraud cause is without merit. The statute of limitations for fraud is 3 years. (Code Civ. Proc. § 338(d).)” (Reply; 9:7-8.) Again, under Jay, the court declines to consider this argument raised for the first time by Defendant in his Reply brief because such consideration would deprive Plaintiff of an opportunity to counter the argument. The Motion did not raise the issue of the statute of limitations as a basis to support Defendant’s contention that the intentional misrepresentation cause of action had no merit. (Motion; 12:8-15.)

Based on the above, the court DENIES the Motion for Summary Adjudication as to Issue No. 4.

Issue No. 5—Nguyen’s Fifth Cause of Action for Interference with Prospective Advantage has no merit:

“The tort of intentional interference with contractual relations requires: ‘ “(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” [Citation].’ [Citations.]” (Davis v. Nadrich (2009) 174 Cal.App.4th 1, 10 (Davis).)

The FAC pleads: (1) “Plaintiff and loan servicer Caliber had a secured lien agreement. Defendant Hai Tran knew about this contractual agreement. Defendant Hai Tran contacted Plaintiff regarding paying the arrearages on the 1^st lien with Caliber Loan Servicing. Plaintiff informed Defendant Tran that she was applying for a loan modification and to provide time so that Plaintiff could apply and reduce her payment on the first lien and get caught up on the arrearages and not incur more arrearages with Tran who is a hard money lender and had harsher repayment terms than the Caliber loan.” (FAC, ¶ 76.); (2) “Tran refused and did not provide Plaintiff a reasonable time either intentionally or negligently.” (FAC, ¶ 77.); and (3) “Plaintiff was approved for a loan modification prior to the sale of the Subject Property in writing in 2019. Plaintiff complied with the agreement and was rejected since Caliber stated that Tran sent in a payment prior to Plaintiff accepting the loan modification approval.” (FAC, ¶ 78.)

The Motion asserts, “The interference cause fails because Tran was authorized under the deed of trust to make payments to the senior lien. (UMF No. 2; Ex. 2 to Tran Dec.) Such payments are arguably also authorized by Civil Code section 2943. Further, Tran owed no duty to Nguyen and there is no evidence to support the elements of this claim.”

Defendant contends that Defendant was authorized to make payments on the senior lien. Defendant, however, has not presented evidence that such payments were not designed to induce a breach or disruption of the contractual relationship between Plaintiff and Caliber regarding a loan modification. Thus, the court finds that Defendant has not carried Defendant’s initial burden of demonstrating that the fifth cause of action has not merit.

In the Reply, Defendant argues for the first time that “Further, Caliber’s records show the loan mod was denied because Nguyen failed to accept the loan mod. (Ward Dec., Ex. 49, entries for 1/6/2020.) Caliber’s servicing records also show that Nguyen claimed to be out the country July 2019-Dec. 2019. (Id., entries for July 2019-December 2019.) [¶] By its terms, to get the loan mod, Nguyen and her husband would have had to sign and notarize the document. They never did.” (Ex. 5 to Nguyen Dec.)” (Reply; 10: 22-27.) Under Jay, the court declines to consider this argument raised for the first time by Defendant in the Reply because such consideration would deprive Plaintiff of an opportunity to counter the argument.

As to Defendant’s contention that Plaintiff has no evidence to support the elements of this claim, Defendant has not provided any argument in support of his contention that Plaintiff cannot meet the elements of the intentional misrepresentation claim. Therefore, Defendant has failed to meet Defendant’s initial burden on this issue.

Therefore, the court DENIES the Motion for Summary Adjudication as to Issue No. 5.

Issue No. 6—Nguyen’s Sixth Cause of Action for Bus. & Prof. Code § 17200 has no merit:

The Motion states, “The UCL cause fails because Tran did not overcharge the loan. The loan documents did not require Tran to provide loan statements, let alone in any particular form. Further, the undisputable evidence shows that Tran provided loan statements.” (Motion; 14:6-8.)

Therefore, the court DENIES the Motion for Summary Adjudication as to Issue No. 6.

Issue No. 7—Nguyen’s claim for exemplary damages has no merit:

The Motion states, “The request for exemplary damages lacks merit because all of Nguyen’s causes of action lack merit as shown above. Further, there are no evidence showing oppression, fraud, or malice.” (Motion; 14:19-20.)

Defendant has initial burden to show a lack of evidence of oppression, fraud, or malice. Since the court has found that there are triable issues of fact as to the all of the causes of action as discussed above, the court finds that Defendant has not carried Defendant’s initial burden of demonstrating the nonexistence of a triable issue of material fact as to exemplary damages.

Further, “Punitive damages are recoverable in those fraud actions involving intentional, but not negligent, misrepresentations. [Citations.]” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1241 (Alliance).) “If the deception was intentional, then punitive damages are available. [Citation.]” (Benson v. Southern California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198, 1208-1209 (Benson).) Since the court has found there is a triable issue of material fact as to the Intentional Misrepresentation cause of action, there is also a triable issue of material fact as to exemplary damages.

Therefore, the court DENIES the Motion for Summary Adjudication as to Issue No. 7.

Based on the above, the court DENIES Defendant’s (Hai Tran) Motion for Summary Judgment, in the Alternative, Motion for Summary Adjudication, filed on 7-14-22 under ROA No. 131, as to Issue Nos. 1, 2, 3, 4, 5, 6, and 7 raised by the Motion for Summary Adjudication. Since the court has denied the Motion for Summary Adjudication, the court DENIES the Motion for Summary Judgment.

Plaintiff is to give notice.