This case was last updated from Los Angeles County Superior Courts on 05/25/2019 at 14:04:53 (UTC).

AMANDA TULLER ET AL VS GOLDEN BEAR CAPITAL INC

Case Summary

On 02/11/2016 AMANDA TULLER filed a Personal Injury - Other Personal Injury lawsuit against GOLDEN BEAR CAPITAL INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MELVIN D. SANDVIG, BENNY C. OSORIO and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9725

  • Filing Date:

    02/11/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MELVIN D. SANDVIG

BENNY C. OSORIO

ELAINE LU

 

Party Details

Plaintiffs and Petitioners

TULLER AMANDA

TULLER MATT

Defendants and Respondents

DOES 1 TO 10

GOLDEN BEAR CAPITAL INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BISH LAW

LAW BISH

CUTTING STACEY RAE

Defendant and Respondent Attorneys

CHIRSTOPHER SEAN REYES

FOSS JOSEPH E.

FOSS JOSEPH

SHEPPARD MULLIN RITCHER & HAMPTON

 

Court Documents

Minute Order

3/6/2018: Minute Order

NOTICE OF REJECTION - APPLICATION FOR DEFAULT JUDGMENT BY COURT ? CONTRACT OR TORT

3/6/2018: NOTICE OF REJECTION - APPLICATION FOR DEFAULT JUDGMENT BY COURT ? CONTRACT OR TORT

ORDER TRANSFERRING NONPERSONAL INJURY (P1) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

5/23/2018: ORDER TRANSFERRING NONPERSONAL INJURY (P1) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

Minute Order

5/29/2018: Minute Order

Unknown

6/14/2018: Unknown

Unknown

6/14/2018: Unknown

Unknown

6/14/2018: Unknown

Unknown

6/14/2018: Unknown

Declaration

8/13/2018: Declaration

Notice of Case Management Conference

11/19/2018: Notice of Case Management Conference

Unknown

12/18/2018: Unknown

SUMMONS

2/11/2016: SUMMONS

COMPLAINT-CONTRACT

2/11/2016: COMPLAINT-CONTRACT

ANSWER OF DEFENDANT GOLDEN BEAR CAPITAL, INC. TO PLAINTIFFS UNVERIFIED COMPLAINT

3/24/2016: ANSWER OF DEFENDANT GOLDEN BEAR CAPITAL, INC. TO PLAINTIFFS UNVERIFIED COMPLAINT

ORDER RE: MOTION TO COMPEL DEFENDANT'S RESPONSES TO FORM INTERROGATORIES (SET ONE)

2/6/2017: ORDER RE: MOTION TO COMPEL DEFENDANT'S RESPONSES TO FORM INTERROGATORIES (SET ONE)

Notice of Ruling

8/14/2017: Notice of Ruling

Minute Order

9/12/2017: Minute Order

Minute Order

12/13/2017: Minute Order

34 More Documents Available

 

Docket Entries

  • 03/06/2019
  • at 08:30 AM in Department F47, Melvin D. Sandvig, Presiding; Case Management Conference - Held

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  • 03/06/2019
  • Minute Order ( (CASE MANAGEMENT CONFERENCE)); Filed by Clerk

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  • 02/28/2019
  • Case Management Statement; Filed by AMANDA TULLER (Plaintiff)

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  • 02/27/2019
  • at 08:30 AM in Department F47, Melvin D. Sandvig, Presiding; Case Management Conference - Not Held - Rescheduled by Party

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  • 02/22/2019
  • Case Management Statement; Filed by GOLDEN BEAR CAPITAL, INC. (Defendant)

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  • 02/21/2019
  • Stipulation and Order (Stipulation to Continue 2/27/19 Case Management Conference; [Proposed] Order); Filed by GOLDEN BEAR CAPITAL, INC. (Defendant)

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  • 01/18/2019
  • Answer; Filed by GOLDEN BEAR CAPITAL, INC. (Defendant)

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  • 12/18/2018
  • Complaint (1st); Filed by AMANDA TULLER (Plaintiff); MATT TULLER (Plaintiff)

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  • 12/18/2018
  • Amended Complaint (1st); Filed by AMANDA TULLER (Plaintiff); AMANDA TULLER (Plaintiff); MATT TULLER (Plaintiff) et al.

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  • 11/19/2018
  • Notice of Case Management Conference; Filed by Clerk

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91 More Docket Entries
  • 03/24/2016
  • Answer to Complaint; Filed by Attorney for Deft/Respnt

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  • 03/24/2016
  • Answer; Filed by GOLDEN BEAR CAPITAL, INC. (Defendant)

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  • 03/07/2016
  • Proof-Service/Summons

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  • 03/07/2016
  • Proof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 03/07/2016
  • PROOF OF SERVICE SUMMONS

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  • 02/11/2016
  • Complaint; Filed by AMANDA TULLER (Plaintiff); MATT TULLER (Plaintiff)

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  • 02/11/2016
  • COMPLAINT-CONTRACT

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  • 02/11/2016
  • SUMMONS

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  • 02/11/2016
  • Complaint; Filed by AMANDA TULLER (Plaintiff); MATT TULLER (Plaintiff)

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  • 02/11/2016
  • Complaint

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Tentative Rulings

Case Number: BC609725    Hearing Date: April 1, 2021    Dept: F47

Dept. F-47

Date: 4/2/21 TRIAL DATE: 5/3/21

Case #BC609725

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

Motion filed on 1/15/21.

MOVING PARTY: Defendant Golden Bear Capital, Inc.

RESPONDING PARTY: Plaintiffs Amanda Tuller and Matt Tuller

NOTICE: ok

RELIEF REQUESTED: An order granting summary judgment in favor of Defendant Golden Bear Capital, Inc. and against Plaintiffs Amanda Tuller and Matt Tuller. Alternatively, Defendant requests summary adjudication in its favor and against Plaintiffs on Plaintiffs’ 1st cause of action for Breach of Oral and Implied Contract, 2nd cause of action for Breach of Fiduciary Duty and 3rd cause of action for Professional Negligence.

RULING: The request for summary judgment is denied. Summary adjudication is denied as to the 2nd cause of action for Breach of Fiduciary Duty. Summary adjudication is granted as to the 1st cause of action for Breach of Oral and Implied Contract and as to the 3rd cause of action for Professional Negligence.

This action arises out of Plaintiffs Amanda Tuller and Matt Tuller’s (Plaintiffs) attempt to obtain mortgage financing through Defendant Golden Bear Capital, Inc. (Defendant), a mortgage broker. Plaintiffs claim that that they qualified for a special program that gave them $15,000 in grant funding as a down payment for a home. Plaintiffs allege that a representative from Defendant, Karen Amorati, made misrepresentations to them regarding the status of the mortgage loan funding. As a result of the misrepresentations, Plaintiffs contend that they lost the home they were going to purchase, lost the deposits they had given to secure the sale of the home, lost the grant funding, lost the home they were renting and were forced to obtain alternate housing that was more expensive.

In the operative Second Amended Complaint Plaintiffs allege causes of action for: (1) Breach of Oral and Implied Contract, (2) Breach of Fiduciary Duty and (3) Professional Negligence against Defendant. Defendant now moves for summary judgment in its favor and against Plaintiffs. Alternatively, Defendant requests summary adjudication in its favor and against Plaintiffs on Plaintiffs’ 1st cause of action for Breach of Oral and Implied Contract, 2nd cause of action for Breach of Fiduciary Duty and 3rd cause of action for Professional Negligence.

1st cause of action – Breach of Oral and Implied Contract

Under the Statute of Frauds, an agreement that relates to “authorizing or employing an agent, broker, or any other person to purchase or sell real estate, . . . or to procure, introduce, or find a purchaser or seller of real estate . . . for compensation or a commission,” must be in writing. CC 1624(a)(4); CC 1622. The Statute of Frauds applies to anyone who “aid[s] and assist[s] in the purchase or sale” of real estate. Duckworth (1933) 135 CA 661, 666. Additionally, the Statute of Frauds applies to agreements for “compensation or a commission” relating to the “purchase or real estate.” CC 1624(a)(4). “As soon as practical after a borrower requests that the residential mortgage lender licensee arrange a loan to be made by another institutional lender, and before the licensee performs brokerage services for the borrower, the licensee and borrower shall enter into a written loan brokerage agreement that satisfies the requirements of this section.” Financial Code 50701(a).

Here, Plaintiffs claim they entered into an oral or implied agreement with Defendant for compensation in exchange for Defendant’s services in assisting Plaintiffs procure a loan for the purchase of real estate. (SAC p.3, ¶BC-1). Therefore, the Statute of Frauds applies, and any agreement must be in writing to be enforceable. Since Plaintiffs’ 1st cause of action is based on an alleged oral and/or implied agreement, it is unenforceable under the Statute of Frauds. (Separate Statement (SS) 113-116; SAC p.3, ¶BC-1); See Westside Estate Agency, Inc. (2016) 6 CA5th 317, 322-323.

Even if the Statute of Frauds did not apply, the breach of contract cause of action fails. The elements of a breach of contract cause of action are: (1) the existence of a contract; (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach and (4) resulting damages to plaintiff. Darburn Enterprises, Inc. (2015) 239 CA4th 399, 409; CACI 300, 303. The elements of the existence of a contract are: (1) the parties capable of contracting; (2) the parties’ mutual consent; (3) a lawful object; and (4) sufficient consideration. CC 1550.

The evidence establishes that no contract existed between Plaintiffs and Defendant due to lack of mutual consent and lack of consideration. Plaintiffs have not identified the exact terms of the alleged agreement making it so uncertain that there is no mutual consent. See Daniels (2016) 246 CA4th 1150, 1175; Bustamante (2006) 141 CA4th 199, 202-207, 209-213; (SS 158-163).

Consideration is defined as:

Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.

CC 1605

Here, Plaintiffs allege that they “offered to provide financial, historical, employment, personal and all relevant information” to Defendant to obtain funding to purchase real property, in exchange, Plaintiffs claim Defendant was to “negotiate with the mortgage lender, obtain all necessary documentation for funding of the loan and provide the lender, escrow company, and its agents, any and all information/documentation required to secure funding.” (See SAC Attachment BC-1 ¶2; SS 130, 139, 155, 159). The fact that Plaintiffs submitted forms and other documentation did not provide a benefit to Defendant. See Mehta (S.D. Cal. 2010) 737 F.Supp.2d 1185, 1197. Additionally, Plaintiffs did not compensate Defendant or agree to do so. (SS 125-128). Further, Defendant did not discuss or agree to terms for its services to Plaintiffs. (SS 161). It is standard in the mortgage loan broker industry for a lender to pay a broker for services. (SS 125).

Even if providing forms and documentation could be viewed to provide Defendant with some benefit, the conduct does not amount to consideration as Plaintiffs were already bound to provide the information to the lender in order to obtain a loan. (SS 130, 139, 155, 159); See O’Byrne (2001) 94 CA4th 797, 808-810; Grant (1949) 91 CA2d 68, 75; Williams Const. Co. (1967) 254 CA2d 442, 453

Since there was no mutual consent or consideration, no contract was formed. Without a contract between the parties, there can be no cause of action for breach of contract. Humbert (1963) 214 CA2d 1, 12.

In the opposition, Plaintiffs fail to refute that the breach of contract claim is barred by the Statute of Frauds or that no contract existed due to lack of mutual consent and lack of consideration. Rather, Plaintiffs claim that they have pled a claim for promissory estoppel. (See Opp. p.4:13-28). On a motion for summary judgment/summary adjudication, the court is limited to assessing the theories alleged in a plaintiff’s complaint. See Laabs (2008) 163 CA4th 1242, 1253, as modified on denial of reh’g; Falcon (2014) 224 CA4th 1263, 1275. An opposition to a motion for summary judgment/adjudication may not create new and unpled issues outside the pleadings, and they are not a substitute for an amendment to the pleadings. Id. A promissory estoppel cause of action is distinct from and unrelated to a breach of contract cause of action. See Douglas E. Barnhart, Inc. (2012) 211 CA4th 230, 243. Plaintiffs have failed to offer any justifiable reason for asserting a new claim for promissory estoppel more than five years after this action was filed and barely a month before the trial of this case.

2nd cause of action – Breach of Fiduciary Duty

The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of that; and (3) damage proximately caused by the breach. Ash (2014) 223 CA4th 1258, 1276. A mortgage broker is a fiduciary of the borrower. CC 2923.1(a). As a result, the mortgage broker must “place the economic interest of the borrower ahead of his or her own economic interest.” Id. The mortgage broker has an obligation to disclose “the terms of a loan to borrowers and to act always in the utmost good faith toward their principals.” Wyatt (1979) 24 C3d 773, 782.

Contrary to Defendant’s assertion, Plaintiffs have not changed course by claiming that Defendant’s breach of fiduciary duty is based on a failure in communication. (See Reply p.4:1-5). In the Second Amended Complaint, Plaintiffs alleged that “Defendant made repeated false representations upon which Plaintiffs relied to their detriment.” (SAC p.8 ¶27). Additionally, Plaintiffs alleged that Defendant’s agent, Amorati, told them that “the sale would close ‘on time or early’ when it did not have lender approval” and “that there was nothing to worry about when removing the loan contingency, even though she knew she did not have lender approval at that time.” Id. In opposition to the motion, Plaintiffs have supported this claim with evidence that in response to emails sent by Plaintiffs’ real estate agent asking if the sale would close on time, Amorati responded “On time or early” and asking if Defendant’s agent had any objection or worry about Plaintiffs removing the loan contingency, Defendant’s agent responded “None at all, just makes it better.” (See Poff Decl. ¶¶17-21 and Ex.2 thereto; SS 465, 466, 468).

The foregoing is sufficient to create a triable issue of material fact as to whether Defendant breached its fiduciary duty to Plaintiffs to act in the utmost good faith and whether such breach substantially caused or contributed to Plaintiffs’ damages.

3rd cause of action – Professional Negligence

The elements for a cause of action for professional negligence are: (1) the existence of a duty; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) loss or damage resulting from the professional negligence. Oasis West Realty, LLC (2011) 51 C4th 811, 821. Plaintiffs base their professional negligence claim on the same duty and conduct which underlies their breach of fiduciary duty cause of action. (SAC p.8 ¶¶23, 25, p.9 ¶¶23, 25). Plaintiffs have failed to establish that Defendant owed them any duty to support their professional negligence claim.

In opposition to the motion, Plaintiffs fail to address the arguments made by Defendants in relation to the professional negligence claim.

Evidentiary Objections

The Court has not considered Plaintiffs’ evidentiary objections because they are untimely. Written objections to evidence in the papers on a motion for summary judgment may be submitted under CRC 3.1354. CRC 3.1352(1). All written objections to evidence in support of a motion for summary judgment or summary adjudication must be served and filed at the same time as the objecting party’s opposition. CRC 3.1354(a). Here, Plaintiffs’ timely filed and served their opposition to the motion on 3/19/21. See CCP 437c(b)(2). However, Plaintiffs’ evidentiary objections were not filed and served until 3/26/21, the same day Defendant served and filed the reply.

Defendants’ objections numbers 1-4 to the declaration of Amanda Tuller are sustained. The exhibits referred to in the declaration are not attached. Defendants’ objections 5-6 to the declaration of Amanda Tuller are overruled.

Defendants’ objections numbers 1, 3-11, 34-36, 38, 43, 44 and 47-52 to the declaration of Jessica Poff are sustained. Defendants’ objections numbers 2, 12-33, 37, 39, 40, 42, 45 and 46 are overruled. The Court notes that there is no objection number 41.

Case Number: BC609725    Hearing Date: November 20, 2020    Dept: F47

Dept. F-47

Date: 11/20/20

Case #BC609725

DEMURRER & MOTION TO STRIKE

TO THE

SECOND AMENDED COMPLAINT

Demurrer & Motion to Strike filed on 5/14/20 (in one document).

MOVING PARTY: Defendant Golden Bear Capital, Inc.

RESPONDING PARTY: Plaintiffs Amanda Tuller and Matt Tuller

NOTICE: ok

Demurrer is to the entire Second Amended Complaint:

1. Breach of Contract (Oral and Implied)

2. Breach of Fiduciary Duty

3. Professional Negligence

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking the entire Second Amended Complaint on the grounds that each cause of action is barred by the applicable statute of limitations.

RULING: The demurrer is overruled and the motion to strike is denied. Answer is due within 20 days.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions. (See also 10/1/20 Notice to Attorneys).

The Court has considered Plaintiffs’ opposition, although it was filed and served after the deadline set by the Court in the notice of continuance. CRC 3.1300(d). Defendant was not prejudiced by the late filing or service as it had the opportunity to file and serve a reply on the merits.

Defendant’s Request for Judicial Notice (RJN) is granted.

This action arises out of Plaintiffs’ attempt to obtain mortgage financing through Defendant. Plaintiffs claim that that they qualified for a special program that gave them $15,000 in grant funding as a down payment for a home. Plaintiffs allege that a representative from Defendant made misrepresentations to them regarding the status of the mortgage loan funding. As a result of the misrepresentations, Plaintiffs contend that they lost the home they were going to purchase, lost the deposits they had given to secure the sale of the home, lost the grant funding, lost the home they were renting and were forced to obtain alternate housing that was more expensive.

On 2/11/16, Plaintiffs filed their original form Complaint against Defendant. Although the Complaint indicated that a cause of action for breach of contract was attached, the attachment to the original complaint was for general negligence. (RJN, Ex.A). Within that cause of action, Plaintiffs alleged that in November 2014 Defendant entered a contract with Plaintiffs to provide certain services related to their purchase of a condominium, Defendant was to timely submit loan paperwork so the loan could be approved and the sale could proceed, Defendant failed to do so, and as a result Plaintiffs were unable to purchase the home. Id. Plaintiffs prayed for damages of $250,000 based on loss of down payment, loss of grant money, loss of opportunity and change in interest rate. Id.

On 3/24/16, Defendant filed its Answer to the Complaint. (RJN, Ex. B, Docket.). On 9/12/17, Judge Benny Osorio struck Defendant’s Answer and entered default because Defendant, a corporation, was unrepresented. Id. On 3/6/28, Judge Elaine Lu rejected Plaintiffs’ Application for Default Judgment. (RJN, Ex. E, 3/16/18, Minute Order). On 4/10/18, Sheppard Mullin filed a Substitution of Attorney for Defendant and became counsel of record. (RJN, Ex.B). On 5/29/18, the case was transferred to Dept. F-47. Id. On 11/15/18, this Court entered the parties’ Stipulation to Set Aside Default and permit Plaintiffs to file a First Amended Complaint. Id. On 12/18/18, Plaintiffs filed their First Amended Complaint asserting causes of action for breach of written, oral, and implied contract and breach of fiduciary duty. (RJN, Ex. C). On 1/18/19, Defendant filed its Answer to the First Amended Complaint. (RJN, Ex. B). On 12/3/19, Brown White & Osborn LLP (Defendant’s current counsel) replaced Sheppard Mullin as Defendant’s counsel. Id. On 2/24/20, this Court granted Defendant’s Motion for Judgment on the Pleadings as to all causes of action in the First Amended Complaint and granted Plaintiffs 30 days leave to amend and granted Plaintiffs’ request for leave to include a cause of action for professional negligence. (RJN, Ex. D). On 3/30/20, Plaintiffs filed their Second Amended Complaint which contains causes of action for: (1) breach of contract (implied and oral); (2) breach of fiduciary duty; and (3) professional negligence. (RJN, Ex.B).

Plaintiffs’ causes of action accrued by 2/18/15, the date the seller canceled the sale and Plaintiffs sustained their alleged damages. Plaintiffs filed their original Complaint on 2/11/16, within the applicable two and three year statutes of limitations for causes of action for: (1) breach of oral/implied contract has a two year statute of limitations (CCP 339); (2) breach of fiduciary duty based on fraud has a three year statute of limitations (Thomson (2011) 198 CA4th 594, 606; CCP 338(d)); and (3) professional negligence has a two year statute of limitations (CCP 339(1)). The causes of action asserted in Plaintiffs’ Second Amended Complaint relate back to the filing of the original Complaint.

Under the relation-back doctrine, an amended complaint relates back to the filing of the original complaint if the amendment: (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. Pointe San Diego Residential Community, L.P. (2011) 195 CA4th 265, 276

As noted above, Plaintiffs’ original Complaint contained references to a breach of contract and negligence claim. The Second Amended Complaint arises out of the same general set of facts as the original Complaint: that Defendant did not properly perform/negligently performed its duties related to obtaining a loan for Plaintiffs’ purchase of property and as a result Plaintiffs suffered harm. The allegations in the original Complaint put Defendant on adequate notice of the claims asserted in the Second Amended Complaint, even if they are based on different legal theories. Id. at 277; Smeltzley (1977) 18 C3d 932, 934, 936.

The Second Amended Complaint cannot be determined to be a sham pleading. The allegations in the Second Amended Complaint do not contradict allegations made in prior complaints. Rather, the Second Amended Complaint clarifies and elaborates on Plaintiffs’ claims. It also cannot be determined as a matter of law that the conduct allegedly committed by Defendant did not cause or contribute to Plaintiffs’ claimed damages.

Plaintiffs have alleged sufficient facts to state each of their causes of action. With regard to the 1st cause of action, Plaintiffs have alleged the existence of an oral and implied contract, its terms, Defendant’s breach and resulting damages. (SAC p.4, BC-1¶¶1-5, pp.6-7, BC-2 ¶¶20, 21). With regard to the 2nd cause of action for breach of fiduciary duty, Plaintiffs have alleged a fiduciary relationship, which was breached by Defendant causing damage to Plaintiffs. (SAC p.8 ¶¶23-28). With regard to the 3rd cause of action for professional negligence, Plaintiffs have alleged that Defendant owed them a duty which Defendant breached causing Plaintiffs to suffer damages. (SAC p.9 ¶¶23-27).

Case Number: BC609725    Hearing Date: October 15, 2020    Dept: F47

Dept. F-47

Date: 10/15/20

Case #BC609725

MOTION TO COMPEL COMPLIANCE

Motion filed on 5/20/20.

MOVING PARTY: Defendant Golden Bear Capital, Inc.

RESPONDING PARTY: Plaintiff Amanda Tuller

NOTICE: ok

RELIEF REQUESTED: An order compelling Plaintiff Amanda Tuller to produce documents in accordance with Plaintiff’s response to Defendant’s Request for Production, Set 2. Additionally, Defendant requests sanctions against Plaintiff and Plaintiff’s counsel, Stacey R. Cutting, in the amount of $1,900.00.

RULING: The motion is granted as set forth below.

This action arises out of Plaintiffs’ attempt to obtain mortgage financing through Defendant. Plaintiffs claim that that they qualified for a special program that gave them $15,000 in grant funding as a down payment for a home. Plaintiffs allege that a representative from Defendant made misrepresentations to them regarding the status of the mortgage loan funding. As a result of the misrepresentations, Plaintiffs contend that they lost the home they were going to purchase, lost the deposits they had given to secure the sale of the home, lost the grant funding, lost the home they were renting and were forced to obtain alternate housing that was more expensive. The operative Second Amended Complaint contains causes of action for breach of contract, breach of fiduciary duty and professional negligence.

On 2/27/20, Defendant propounded Request for Production, Set 2, on Plaintiff Amanda Tuller. (Posadas Decl. ¶2, Ex.A). This Request included Requests Numbers 58, 59, 60 and 61. Id. On 4/2/20, Plaintiff served responses to the Requests which included objections, but ultimately stated that Plaintiff would comply with the Requests and produce all responsive documents within her possession, custody or control. (Posadas Decl. ¶3, Ex.B). However, Plaintiff failed to produce any responsive documents. As a result, Defendant’s counsel sent two emails, on 5/5/20 and 5/12/20, requesting the responsive documents. (Posadas Decl. ¶¶4-5, Ex.D, E). Plaintiff’s counsel did not respond to the emails purportedly because she was experiencing personal issues along with issues created by the pandemic; however, Plaintiff’s counsel began efforts to obtain the responsive documents on 5/18/20. (Cutting Decl. ¶¶7-11). After receiving the motion on 5/20/20, Plaintiff’s counsel served responsive documents on 5/21/20. (Cutting Decl. ¶¶12-13). As a result, Plaintiff contends the motion is moot and sanctions should not be imposed. However, if sanctions are imposed, the opposition claims that the failure to timely serve the responsive documents was counsel’s fault; therefore, if sanctions are imposed, they should be imposed only on attorney Cutting in a reduced amount. (See Opp. p.4:20-p.5:1).

In reply to the opposition, Defendant contends the motion is not moot because Plaintiff failed to produce documents responsive to Request 61 which sought profit and loss statements for 2012, 2013 and 2014. Nor has Plaintiff served an amended response to Request 61 indicating that she cannot comply with the request and why. Therefore, within 20 days, Plaintiff is ordered to produce documents responsive to Request 61 or serve a verified amended response to Request 61 indicating that she cannot comply with the request and why.

Defendant is entitled to sanctions due to Plaintiff’s counsel’s failure to respond to meet and confer efforts and failure to provide responsive documents, at least in part, until after the motion was filed. See CCP 2031.320(b). Based on Plaintiff’s counsel’s willingness to accept responsibility for the foregoing failures, sanctions in the amount of $500.00 are imposed against attorney Stacey Cutting, payable within 20 days.

Dept. F-47

Date: 10/15/20

Case #BC609725

MOTION TO COMPEL COMPLIANCE

Motion filed on 5/20/20.

MOVING PARTY: Defendant Golden Bear Capital, Inc.

RESPONDING PARTY: Plaintiff Matt Tuller  

NOTICE: ok

RELIEF REQUESTED: An order compelling Plaintiff Amanda Tuller to produce documents in accordance with Plaintiff’s response to Defendant’s Request for Production, Set 4.  Additionally, Defendant requests sanctions against Plaintiff and Plaintiff’s counsel, Stacey R. Cutting, in the amount of $1,900.00.    

RULING: The motion is granted as set forth below. 

This action arises out of Plaintiffs’ attempt to obtain mortgage financing through Defendant.  Plaintiffs claim that that they qualified for a special program that gave them $15,000 in grant funding as a down payment for a home.  Plaintiffs allege that a representative from Defendant made misrepresentations to them regarding the status of the mortgage loan funding.  As a result of the misrepresentations, Plaintiffs contend that they lost the home they were going to purchase, lost the deposits they had given to secure the sale of the home, lost the grant funding, lost the home they were renting and were forced to obtain alternate housing that was more expensive.  The operative Second Amended Complaint contains causes of action for breach of contract, breach of fiduciary duty and professional negligence.

On 2/27/20, Defendant propounded Request for Production, Set 4, on Plaintiff Matt Tuller.  (Posadas Decl. ¶2, Ex.A).  This Request included Requests Numbers 66, 67, 68 and 69.  Id.  On 4/2/20, Plaintiff served responses to the Requests which included objections, but ultimately stated that Plaintiff would comply with the Requests and produce all responsive documents within his possession, custody or control.  (Posadas Decl. ¶3, Ex.B).  However, Plaintiff failed to produce any responsive documents.  As a result, Defendant’s counsel sent two emails, on 5/5/20 and 5/12/20, requesting the responsive documents.  (Posadas Decl. ¶¶4-5, Ex.D, E).  Plaintiff’s counsel did not respond to the emails purportedly because she was experiencing personal issues along with issues created by the pandemic; however, Plaintiff’s counsel began efforts to obtain the responsive documents on 5/18/20.  (Cutting Decl. ¶¶7-11).  After receiving the motion on 5/20/20, Plaintiff’s counsel served responsive documents on 5/21/20.  (Cutting Decl. ¶¶12-13).  As a result, Plaintiff contends the motion is moot and sanctions should not be imposed.  However, if sanctions are imposed, the opposition claims that the failure to timely serve the responsive documents was counsel’s fault; therefore, if sanctions are imposed, they should be imposed only on attorney Cutting in a reduced amount.  (See Opp. p.4:20-p.5:1).

In reply to the opposition, Defendant contends the motion is not moot because Plaintiff failed to produce documents responsive to Request 69 which sought profit and loss statements for 2012, 2013 and 2014.  Nor has Plaintiff served an amended response to Request 69 indicating that he cannot comply with the request and why.  Therefore, within 20 days, Plaintiff is ordered to produce documents responsive to Request 69 or serve a verified amended response to Request 69 indicating that he cannot comply with the request and why. 

Defendant is entitled to sanctions due to Plaintiff’s counsel’s failure to respond to meet and confer efforts and failure to provide responsive documents, at least in part, until after the motion was filed.  See CCP 2031.320(b).  Based on Plaintiff’s counsel’s willingness to accept responsibility for the foregoing failures, sanctions in the amount of $500.00 are imposed against attorney Stacey Cutting, payable within 20 days.       

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