On 07/24/2018 PRISCILLA CLARKE filed a Contract - Other Contract lawsuit against LEWIS WILKINS. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Pending - Other Pending
JON R. TAKASUGI
CRATON CURT RAYMOND
CURD JOSEPH D.
9/27/2021: Challenge To Judicial Officer - Peremptory (170.6) - Challenge To Judicial Officer - Peremptory (170.6)
10/1/2021: Notice (name extension) - Notice Of Entry Of Judgment Or Order
9/24/2021: Witness List - Witness List
9/24/2021: Exhibit List - Exhibit List
9/24/2021: Notice (name extension) - Notice of Lodging of Deposition Transcript of Defendant Lewis Wilkins
9/24/2021: Trial Brief - Trial Brief
9/27/2021: Minute Order - Minute Order (Non-Jury Trial)
9/27/2021: Trial Brief - Trial Brief
9/28/2021: Notice of Settlement - Notice of Settlement
9/29/2021: Minute Order - Minute Order (Non-Jury Trial)
3/16/2021: Stipulation and Order (name extension) - Stipulation and Order Stipulation and Joint Request to Continue Trial Date and All Pre-Trial Related Deadlines; Proposed Order
3/19/2021: Association of Attorney - Association of Attorney
6/2/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Non-Jury Trial) of 06/02/2020
6/2/2020: Minute Order - Minute Order (Court Order Re: Non-Jury Trial)
3/18/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order
2/3/2020: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)
1/24/2020: Response (name extension) - Response Response to Supplemental Separate Statement
1/27/2020: Reply (name extension) - Reply Reply to Defendant's Opposition to Plaintiff's Supplemental Motion for Summary Judgment
Hearing12/07/2021 at 09:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)Read MoreRead Less
DocketNotice Of Entry Of Judgment Or Order; Filed by: Priscilla Clarke (Plaintiff); As to: Lewis Wilkins (Defendant)Read MoreRead Less
DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 12/07/2021 at 09:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketMinute Order (Non-Jury Trial)Read MoreRead Less
DocketOn the Court's own motion, Non-Jury Trial scheduled for 09/29/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/29/2021Read MoreRead Less
DocketNotice of Settlement; Filed by: Priscilla Clarke (Plaintiff); Vacate Future Dates: No; Settlement Type: Unconditional; Set Hearing and Generate Notice?: NoRead MoreRead Less
DocketTrial Brief; Filed by: Lewis Wilkins (Defendant)Read MoreRead Less
DocketUpdated -- Challenge To Judicial Officer - Peremptory (170.6): Filed By: Priscilla Clarke (Plaintiff); Result: Granted; Result Date: 09/27/2021; As To Parties: removedRead MoreRead Less
DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by: Priscilla Clarke (Plaintiff); Judge Name: Judge TillmonRead MoreRead Less
DocketMinute Order (Non-Jury Trial)Read MoreRead Less
DocketAnswer; Filed by: Lewis Wilkins (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by: Priscilla Clarke (Plaintiff); As to: Lewis Wilkins (Defendant); Service Date: 08/01/2018; Service Cost: 75.00; Service Cost Waived: NoRead MoreRead Less
DocketComplaint; Filed by: Priscilla Clarke (Plaintiff); As to: Lewis Wilkins (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Priscilla Clarke (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketUpdated -- Amended Complaint (1st): Status Date changed from 10/11/2019 to 07/24/2018Read MoreRead Less
DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 01/21/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 07/27/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
Case Number: 18STLC09925 Hearing Date: February 03, 2020 Dept: 25
MOTION FOR SUMMARY JUDGMENT
Plaintiff Priscilla Clarke’s Amended Motion for Summary Judgment is DENIED.
OPPOSITION: Filed on January 21, 2020
REPLY: Filed on January 27, 2020
On July 28, 2018, Plaintiff Priscilla Clarke (“Plaintiff”) filed the instant action for breach of contract and common counts against her brother Defendant Lewis Wilkins (“Defendant”). The action arises from a Promissory Note dated July 1, 2010 for $20,000.00 between Defendant and Phillip Clarke, Plaintiff’s husband who not a party to this action. (Plf. Exhibit List, Exh.C.) Defendant is the Trustee of the Betty J. Wilkins Living Trust, which owns real property located at 11522 Promenade Dr., Santa Fe Springs, CA 90670 (the “Subject Property”). Plaintiff contends that the money was borrowed to “make payments” on the Subject Property. (Priscilla Clarke Decl., ¶ 5.)
On May 28, 2019, Plaintiff filed a Motion for Leave to Amend the Complaint (“Motion for Leave”). On July 12, 2019, Plaintiff filed a Motion for Summary Judgment. On September 19, 2019, Defendant filed an Opposition the Motion for Summary Judgment. The Motion for Summary Judgment and Motion for Leave were both scheduled for hearing on October 2, 2019.
On October 2, 2019, the Court granted Plaintiff’s Motion for Leave. (10/2/19 Minute Order.) The Court noted, however, that because leave had been granted, the Motion for Summary Judgment was moot as the original complaint was no longer operative. (Id., p. 3.) In the interest of justice, Plaintiff was permitted to file an amended motion for summary judgment and Defendant was permitted to file an opposition. (Ibid.)
On October 11, 2019, Plaintiff filed First Amended Complaint (the “FAC”), which explained that Plaintiff’s husband had assigned to her all rights to the subject loan agreement in this action. (FAC., . 5, ¶ 7.)
On November 12, 2019, Plaintiff filed a Supplemental Motion for Summary Judgment (the “Amended Motion”). On January 21, 2020, Defendant filed an Opposition to the Amended Motion and on January 27, 2020, Plaintiff filed a reply.
II. Legal Standard
A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)
When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) “[T]he court may not weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact. [Citation.]” Andrews v. Foster Wheeler, LLC (2006) 138 Cal.App.4th 96, 113.)
Plaintiff moves for summary judgment as to both causes of action asserted in the FAC.
Breach of Contract
“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)
As to the first element, the parties agree that on July 1, 2010, Defendant borrowed $20,000.00 from Plaintiff pursuant to a verbal Loan Agreement. The Loan Agreement was memorialized in writing by an unsecured Promissory Note dated July 1, 2020 executed by Defendant and Plaintiff’s husband. (Separate Statement (“SS”), No. 5.) The parties also agree that Defendant was required to make 63 monthly payments of $328.00 per month at 1.25% interest until paid in full. (Id., No. 6.)
As to the second element, the parties also agree that Plaintiff fully performed her end of the bargain by remitting the $20,000.00 as agreed on July 1, 2010. (Id., No. 8.) As evidence, Plaintiff submits a copy of the cashier’s check made out to Defendant. (Plf. Exhibit List, Exh. D.)
As to the fourth element, the parties agree that Plaintiff was harmed by Defendant’s failure to perform, which resulted in the loss of the unpaid loan principal plus interest. (SS., No. 14.)
The parties are also in agreement as to the third element, that is, that Defendant breached the Loan Agreement and Promissory Note by failing to pay the amounts due. (SS, No. 12.) Plaintiff states that Defendant made three payments toward the loan, but on or about October 2010, Defendant contacted her to inform her he could not continue making payments as required. (Am. Motion, p. 7:6-9.) However, Defendant argues that, pursuant to Code of Civil Procedure section 337, subdivision (a), the four-year statute of limitation for written contract actions ran before Plaintiff filed her complaint. (Supp. Oppo., p. 12:25-28.) Specifically, he states that the breach occurred on November 15, 2010, when Defendant failed to make the scheduled payment, or at the latest, on May 3, 2011, when Defendant made a partial and final payment. (Oppo., p. 13:1-6.) Plaintiff, in turn, alleges that Defendant is estopped from asserting a statute of limitations defense because the parties allegedly entered into a “Forbearance Agreement.” (Am. Mot., p. 15:21-23.) Indeed, the parties disagree over the existence and effect of the alleged Forbearance Agreement.
Plaintiff argues the parties entered into the Forbearance Agreement on or about May 3, 2011, when Plaintiff agreed to suspend payments on the condition that Defendant pay Plaintiff back when he sold the Subject Property for the principal amount remaining under the loan, for any property taxes Plaintiff made on Defendant’s behalf, and an acknowledgement by Defendant as Trustee that Plaintiff and her husband jointly owned 50% of the Subject Property. (Priscilla Clarke Decl., ¶ 9.) Defendant argues that the only agreements between the parties are the July 1, 2010 Loan Agreement and Promissory Note, and that he “never accepted, agreed, or entered into a written, verbal, or other forbearance agreement, loan modification, or other workout agreement with plaintiff Clarke or her husband concerning a modification of the term of the Promissory Note.” (Supp. Oppo., Wilkins Decl., ¶ 18.) Thus, Defendant argues, Plaintiff cannot overcome the statute of limitations bar on an equitable estoppel theory. (Supp. Oppo., p. 12-13.)
Equitable estoppel has four elements: “(1) the party to be estopped must be appraised of the facts, (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended, (3) the other party must be ignorant of the true state of facts, and (4) he must rely upon the conduct to his injury.” (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236.)
Plaintiff argues she established all elements of estoppel, while Defendant disputes this. However, whether equitable estoppel exists is a question of fact, not of law. (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 45; Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 925-925 [“[W]hether an estoppel exists, whether the acts, representations or conduct lulled a party into a sense of security preventing him from instituting proceedings before the running of the statute and whether the party relied thereon to his prejudice – is a question of fact and not of law”].)
Thus, a triable issue of material facts exists as to whether Plaintiff can overcome the statute of limitations on an equitable estoppel theory.
Defendant’s Arguments re: The Forbearance Agreement
Defendant argues that the statute of frauds makes the Forbearance Agreement unenforceable and that it constituted an invalid modification to the Promissory Note. (Supp. Oppo., . 5:5:8.) He also argues that because Plaintiff is seeking to enforce the Forbearance Agreement and force the sale of the Subject Property, Defendant must be added as a party in his capacity as Trustee. (Id.., p. 12:15-23.) In response, Plaintiff attempts to clarify that the instant Motion is not made to enforce the Forbearance Agreement, or any modifications made to the Promissory Note, and explains that any reference to the Forbearance Agreement is for the sole purpose of demonstrating that Defendant should be estopped from asserting a statute of limitations defense. (Reply, p. 5:13:18.)
However, the Court notes that the FAC alleges damages of principal and interest on the outstanding Loan Agreement and “reimbursement on property taxes paid on the Subject Property.” (FAC, ¶ BC-4.) Indeed, as Plaintiff concedes, she agreed to partially pay the property taxes for the Subject Property at the time she entered into the alleged Forbearance Agreement. (Priscilla Clarke Decl., ¶ 9.) It also states that Defendant breached the agreement by “[f]ailing to proceed with the sale of the Subject Property and pay back the loan and reimbursement on property taxes paid on the subject property.” (Id., BC-2.) Thus, although Plaintiff argues she is only trying to enforce the Promissory Note, her FAC confusingly suggests otherwise.
An allegation of common counts requires “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Inc. Exchange v. Zerin (1997) 53 Cal.App.445, 460.) The gravamen of the cause of action or the nature of the right sued upon determines the applicable statute of limitations period. (Day v. Greene (1963) 59 Cal.2d 404, 411.)
Here, the gravamen of the action is breach of contract. Accordingly, the applicable statute of limitations is four years. (Code Civ. Proc., § 337, subd. (a).) As with the breach of contact cause of action, a triable issue of material fact exists as to whether equitable estoppel applies in this case.
Accordingly, the Motion is DENIED.
IV. Conclusion & Order
For the foregoing reasons, Plaintiff Priscilla Clarke’s Motion for Summary Judgment is DENIED.
Moving party is ordered to give notice.
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