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This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 02:04:45 (UTC).

PAULETTE JOHANSEN VS PHH MORTGAGE CORPORATION ET AL

Case Summary

On 01/29/2016 PAULETTE JOHANSEN filed a Contract - Other Contract lawsuit against PHH MORTGAGE CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL JOHNSON, MALCOLM MACKEY and SAMANTHA JESSNER. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8637

  • Filing Date:

    01/29/2016

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL JOHNSON

MALCOLM MACKEY

SAMANTHA JESSNER

 

Party Details

Plaintiff and Petitioner

JOHANSEN PAULETTE

Defendants and Respondents

NDEX WEST LLC

DOES 1 TO 20

PHH MORTGAGE CORPORATION

WELLS FARGO BANK N.A.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

JAMES T. RYAN P.C.

JAMES T. RYAN PC

RYAN JAMES

Defendant and Respondent Attorneys

TREDER EDWARD A. ESQ.

BAUER CHRISTOPHER

GHIDOTTI | BERGER LLP

WILLIAMS SHANNON CAROL

 

Court Documents

Minute Order

2/8/2019: Minute Order

Unknown

2/14/2019: Unknown

Ex Parte Application

2/22/2019: Ex Parte Application

Notice of Case Management Conference

4/23/2019: Notice of Case Management Conference

Case Management Statement

5/14/2019: Case Management Statement

NOTICE OF CASE REASSIGNMENT TO DEPARTMENT 56

2/25/2016: NOTICE OF CASE REASSIGNMENT TO DEPARTMENT 56

NOTICE OF CASE MANAGEMENT CONFERENCE

3/11/2016: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF CASE MANAGEMENT CONFERENCE

3/22/2016: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF FILING DECLARATION OF NON-MONETARY STATUS

4/5/2016: NOTICE OF FILING DECLARATION OF NON-MONETARY STATUS

PLAINTIFF'S OBJECTION TO DECLARATION OF NO-NMONETARY STATUS FILED BY DEFENDANT NDEX WEST, LLC

4/11/2016: PLAINTIFF'S OBJECTION TO DECLARATION OF NO-NMONETARY STATUS FILED BY DEFENDANT NDEX WEST, LLC

ANSWER OF DEFENDANT NDEX WEST, LLC TO PLAINTIFF'S UNVERIFIED FIRST AMENDED COMPLAINT

10/5/2016: ANSWER OF DEFENDANT NDEX WEST, LLC TO PLAINTIFF'S UNVERIFIED FIRST AMENDED COMPLAINT

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO FIRST AMENDED COMPLAINT

10/12/2016: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO FIRST AMENDED COMPLAINT

AMENDED NOTICE OF HEARING ON DEMURRER TO THE FIRST AMENDED COMLAINT

11/16/2016: AMENDED NOTICE OF HEARING ON DEMURRER TO THE FIRST AMENDED COMLAINT

REPLY TO PLAINTIFF'S OPPOSITION TO NDEX WEST, LLC'S MOTION FOR JUDGMENT ON THE PLEADINGS

4/14/2017: REPLY TO PLAINTIFF'S OPPOSITION TO NDEX WEST, LLC'S MOTION FOR JUDGMENT ON THE PLEADINGS

Minute Order

4/21/2017: Minute Order

Minute Order

8/1/2017: Minute Order

NOTICE OF RULING ON PLAINTIFF'S MOTION TO STRIKE OR TAX COSTS OF DEFENDANTS PHH MORTGAGE CORPORATION AND WELLS FARGO BANK, N.A.

8/4/2017: NOTICE OF RULING ON PLAINTIFF'S MOTION TO STRIKE OR TAX COSTS OF DEFENDANTS PHH MORTGAGE CORPORATION AND WELLS FARGO BANK, N.A.

70 More Documents Available

 

Docket Entries

  • 05/20/2019
  • Case Management Statement; Filed by PHH Mortgage Corporation (Defendant); Wells Fargo Bank, N.A. (Defendant)

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  • 05/14/2019
  • Case Management Statement; Filed by Paulette Johansen (Plaintiff)

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  • 04/23/2019
  • Notice of Case Management Conference; Filed by Clerk

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  • 04/18/2019
  • Answer; Filed by PHH Mortgage Corporation (Defendant); Wells Fargo Bank, N.A. (Defendant)

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  • 04/18/2019
  • Notice of Change of Firm Name; Filed by PHH Mortgage Corporation (Defendant); Wells Fargo Bank, N.A. (Defendant)

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  • 02/22/2019
  • at 08:30 AM in Department 56; Hearing on Ex Parte Application (for an Order Extending the Deadline to File an Amended Complaint) - Held

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  • 02/22/2019
  • Ex Parte Application (for an Order Extending the Deadline to File an Amended Complaint); Filed by Paulette Johansen (Plaintiff)

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  • 02/22/2019
  • Order (on ex parte application); Filed by Clerk

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  • 02/22/2019
  • Minute Order ( (Hearing on Ex Parte Application for an Order Extending the De...)); Filed by Clerk

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  • 02/14/2019
  • Notice (of Court Order after Remittitur); Filed by Paulette Johansen (Plaintiff)

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142 More Docket Entries
  • 02/11/2016
  • at 09:30 AM in Department 55; (Affidavit of Prejudice; Case is reassigned) -

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  • 02/11/2016
  • Minute Order

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  • 02/11/2016
  • Minute order entered: 2016-02-11 00:00:00; Filed by Clerk

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  • 02/04/2016
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Paulette Johansen (Plaintiff)

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  • 02/04/2016
  • PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)

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  • 02/01/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/01/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/29/2016
  • Complaint; Filed by Paulette Johansen (Plaintiff)

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  • 01/29/2016
  • SUMMONS

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  • 01/29/2016
  • COMPLAINT FOR: 1. BREACH OF WRITTEN CONTRACT; ETC

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Tentative Rulings

Case Number: BC608637    Hearing Date: July 21, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

PAULETTE JOHANSEN, etc.,

Plaintiff,

vs.

PHH MORTGAGE CORPORATION, et al.,

Defendants.

CASE NO.: BC608637

[TENTATIVE] ORDER RE:

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

Date: July 21, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants PHH Mortgage Corporation (“PHH”) and Wells Fargo Bank, N.A. (“WFB”)

RESPONDING PARTY: Plaintiff Paulette Johansen

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s Second Amended Complaint (“SAC”) arises from an alleged foreclosure sale with respect to real property located at 3323 Stevens Street, Glendale, California 91214 (the “Property”). Plaintiff filed the operative SAC against Defendants alleging causes of action for: (1) breach of written contract; and (2) breach of implied covenant of good faith and fair dealing.

Pertinent Allegations of the SAC

In part, the SAC alleges that: (1) on August 28, 2012, Plaintiff filed a civil action against PHH, WFB, and NDeX West, LLC (“NWL”) in the Los Angeles Superior Court , case number EC058961 (the “First Lawsuit”) (SAC at ¶ 27); (2) in the First Lawsuit, Plaintiff alleged that she had an enforceable loan modification agreement and asserted claims for breach of contract, promissory estoppel, negligent and intentional misrepresentation, and unfair business practices (Id. at ¶ 27); (3) on August 31, 2012, Plaintiff obtained a Temporary Restraining Order which “enjoined and restrained [PHH] from selling, transferring, and/or encumbering the [Property]” (Id. at ¶ 28); (4) on February 25, 2014, Plaintiff and Defendants entered into a settlement agreement (the “Settlement Agreement”) in connection with the First Lawsuit which provided that PHH will review Plaintiff’s loan modification package and would determine if any additional information or documents were needed (Id. at ¶ 30); (5) PHH would make a final decision on whether there are any viable loan modification offers that can be made according to investor guidelines and requirements, and no legal action will be taken to evict Plaintiff from the Property during the review process (Id.); (6) if a permanent loan modification is not offered and accepted, or if the second trust deed loan is not released, subordinated, or stripped, then WFB, PHH, and NWL may immediately record a Trustee’s Deed Upon Sale without further notice and initiate post-eviction sale proceeding (Id.); and (7) the Settlement Agreement provided that Plaintiff would dismiss the First Lawsuit with prejudice. (Id.)

The SAC further alleges that: (1) Plaintiff performed all of her obligations under the Settlement Agreement including, without limitation, having the second trust deed loan released, subordinated, and/or stripped and dismissing the First Lawsuit with prejudice (Id. at ¶ 31); (2) on January 7, 2016, NWL, as the purported Trustee, caused to be recorded in the official records of the Recorder’s Office for the County of Los Angeles a Trustee’s Deed Upon Sale that reflected WFB as the Grantee and Beneficiary under the Deed of Trust: Instrument No. 2016-0016885 (“Trustee’s Deed Upon Sale”) (Id. at ¶ 32); (3) Defendants materially breached the Settlement Agreement by failing to timely review the financial information that Plaintiff submitted in late 2013 and early 2014 (Id. at ¶ 50); and (4) Plaintiff performed all conditions of the Settlement Agreement with Defendants or was excused from performance as a result of Defendants’ material breaches. (Id. at ¶ 49.)

The Instant Motion

Defendants filed a motion for summary judgment or, in the alternative summary adjudication, as to each cause of action asserted in the SAC. If summary judgment cannot be granted, Defendants request summary adjudication in favor of WFB on the following issues: (1) Plaintiff’s first cause of action for breach of written contract fails because Plaintiff cannot satisfy the elements of a breach of written contract claim; and (2) Plaintiff’s second cause of action for breach of implied covenant of good faith and fair dealing fails because Plaintiff cannot satisfy the elements of a breach of written contract claim.

Defendants contend that: (1) Defendants performed under the Settlement Agreement; (2) Plaintiff has not been damaged; and (3) Plaintiff’s cause of action for breach of the implied covenant of good faith and fair dealing fails because Defendants took no action that unfairly interfered with Plaintiff’s right to receive the benefits of the Settlement Agreement.

Plaintiff opposes Defendants’ motion on the grounds that: (1) the Court should deny the motion because the separate statement is procedurally defective; (2) Defendants have willfully suppressed evidence; and (3) triable issues exist.

Plaintiff’s Tertiary Arguments

Initially, the Court will address the tertiary arguments presented in the opposition to Defendants’ motion.

The Separate Statement

Plaintiff contends that Defendants’ separate statement is defective because Defendants contend that the same 14 facts support their motion for summary judgment as well as support both issues for summary adjudication.

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251-252.) “The separate statement provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Id. at 252.) Separate statements should “[i]nclude 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 [the] separate statement, the motion must be denied [.]” (Id. at 252.)

Here, the Court finds Plaintiff’s argument that “the exact number of supposedly material facts relevant to each issue is impossible to discern” is not persuasive. (Opposition at 8:5-8.) Defendants’ separate statement clearly and succinctly identifies the facts relevant to each issue.

Therefore, the Court will not deny Defendants’ motion for summary judgment or, in the alternative, summary adjudication on this ground.

Purported Willful Suppression of Evidence

Plaintiff asserts that Defendants have willfully suppressed evidence by deleting or rendering unavailable e-mails from Jane Spare (“Spare”).

“[I]n most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431.) There exists an inference “that evidence which one party has destroyed or rendered unavailable was unfavorable to that party.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 11.) “[I]n cases in which the opposing party (usually the plaintiff) has been thwarted in the attempt to obtain evidence that might create an issue of material fact, or discovery is incomplete, the motion for summary judgment should be denied.” (Kranz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 174.)

The Court finds Plaintiff’s citation to New Albertsons unpersuasive because New Albertsons did not mention the allegation of destruction or suppression of evidence in the context of a motion for summary judgment. Also, the Court finds that while Defendants indicated in their responses to Plaintiff’s discovery that they could not find Spare’s emails with respect to: (1) Plaintiff; (2) the Settlement Agreement; or (3) the Property including but not limited to emails sent or received on four dates (Opposition at 8:21-25; see also Appendix of Exhibits at Exhibits 6-7), Plaintiff presents no reasoned argument or evidence, which will be set forth below, that such missing e-mails were unfavorable to Defendants or that Defendants rendered such evidence unavailable. Plaintiff’s citation to Krantz is equally unpersuasive because the fact that Defendants were unable to locate e-mails does not mean that Defendants thwarted Plaintiff’s attempt to obtain discovery.

Therefore, the Court rejects Plaintiff’s argument on this point.

Additional Triable Issues of Fact

Plaintiff contends that triable issues of fact exist because: (1) Defendants have not presented any evidence that they timely reviewed Plaintiff’s financial package; (2) Defendants have not presented evidence that negates damages; (3) there is a triable issue of fact as to when Defendants reviewed the 2013 financial package; (4) there is a triable issue as to whether Defendants could wait until after Plaintiff performed her obligations before reviewing the 2013 financials; (5) there is a triable issue as to whether Defendants could require Plaintiff to start over and provide an entirely new financial package in 2015; (6) there is a triable issue as to whether Plaintiff had any contractual obligation to respond to any of Defendants’ 2015 letters; (7) there is a triable issue as to whether Defendants made a final decision to deny a permanent loan modification or just temporarily discontinued processing Plaintiff’s application at that time; (8) there is a triable issue as to whether Defendants took any action that unfairly interfered with Plaintiff’s right to receive the benefits of the Settlement Agreement; and (9) there is a triable issue as to whether Defendants acted in good faith by sending letters in 2015 and not attempting to reach Plaintiff by any other means before then.

“The pleadings play a key role in a summary judgment motion and set the boundaries of the issues to be resolved at summary judgment.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444, emphasis added.) “[T]e scope of the issues to be properly addressed in [a] summary judgment motion is generally limited to the claims framed by the pleadings.” (Id.) “A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled.” (Id.) “The pleadings delimit the scope of the issues on a summary judgment motion.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn.3.) “A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings.” (Id.) “Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.” (Id.)

While Plaintiff argues that a triable issue exists as to whether Defendants timely reviewed her financial package, Plaintiff’s opposition concedes that the Settlement Agreement “does not specify a date by which Defendants were to review the 2013 financial package.” (Opposition at 13:11-12.) Pursuant to the first cause of action in the SAC, Plaintiff alleges that Defendants breached the Settlement Agreement because they failed to timely review the financial information that Plaintiff submitted in late 2013 or early 2014 (SAC at ¶ 50.)

Pursuant to the second cause of action in the SAC, Plaintiff alleges that: (1) Defendants breached the implied covenant of good faith and fair dealing by waiting approximately 20 months to attempt to discharge its contractual obligations under the Settlement Agreement (Id. at ¶ 56); (2) Defendants did not act in good faith and with the necessary diligence to review the financial information that Plaintiff submitted, which defeated the purpose of the Settlement Agreement (Id.); and (3) the delay was unreasonable, unfairly frustrated the agreed common purposes of the Settlement Agreement, and disappointed Plaintiff’s reasonable expectations thereby depriving her of the benefits of the Settlement Agreement. (Id.)

Analysis with Respect to Additional Triable Issues of Fact

“The goal of contractual interpretation is to determine and give effect to the mutual intention of the parties.” (Safeco Ins. Co. of America v. Robert S. (2001) 26 Cal.4th 758, 763.) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting.” (Civ. Code § 1636.) A court “is required to give great weight to the conduct of the parties in interpreting the instrument before any controversy arose.” (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 936.)

“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.” (Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 53.) “Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement.” (Civ. Code § 1856(a).) A lender’s failure to follow its own internal procedures does not make a trustee’s sale void or voidable. (Melendrez v. D &I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1261, fn.30.) California Civil Code, Section 1657 provides that “[i]f no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly—as, for example, if it consists of payment of money only—it must be performed immediately upon the thing to be done being exactly ascertained.” “One who makes a promise to do something in the future, having the ability to do it, and no time having been specified for performance, does not violate his agreement until he refuses to perform after demand is made.” (Wilson v. Zorb (1936) 15 Cal.App.2d 526, 535.)

The Court incorporates its recitation of the SAC from the above and incorporates it to the discussion of Plaintiff’s assertion of additional triable issues of fact. Based on the SAC, the only triable issues to be determined are: (1) whether Defendants failed to timely review Plaintiff’s financial package; and (2) whether Plaintiff sustained any damages. Any other issues that Plaintiff asserts are triable issues of fact are not asserted pursuant to the first and second causes of action in the SAC and thus are irrelevant to Defendants’ motion pursuant to Lawlor. As Plaintiff has conceded, and the Settlement Agreement indicates, there was no set deadline for Defendants to review Plaintiff’s financial package. (Feliciano Decl. at Exhibit 2.) Thus, under Shaw, Defendants did not have a time frame in which to review Plaintiff’s financial package.

Therefore, the Court will only assess whether a triable issue of fact exists as to whether: (1) Defendants reviewed Plaintiff’s documentation; and (2) Plaintiff has been damaged.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Defendants’ evidentiary objections numbers 1-15 to the declarations submitted in opposition to their motion for summary judgment or, in the alternative, summary adjudication.

With respect to the declaration of Mark Feliciano (“Feliciano”) submitted in support of Defendants’ motion, the Court SUSTAINS Plaintiff’s evidentiary objections numbers 9-10 and 19-22 and the Court OVERRULES Plaintiff’s evidentiary objections numbers 8, 11-12, and 14-18.

With respect to the declaration of Shannon Williams (“Williams”) submitted in support of Defendants’ motion the Court OVERRULES Plaintiff’s evidentiary objections numbers 1-7.

JUDICIAL NOTICE

The Court GRANTS Defendants’ request for judicial notice.

DISCUSSION

“Code of Civil Procedure section 437c, subdivision (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.) “[A] party may not defeat summary judgment by means of declarations or affidavits which contradict that party’s deposition testimony or sworn discovery responses.” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25.) A plaintiff cannot “rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists.” (Code Civ. Proc. § 437c(p)(2).) “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 828.) Once the moving party has met its burden, the burden then shifts to the non-moving party to show that there is a triable issue as to any material fact. (Id. at 849.) “The defendant need only demonstrate the absence of a triable issues of material fact as to those bases of liability the plaintiff has pleaded.” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465.)

With respect to a motion for summary judgment “the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) With respect to a motion for summary judgment “if it is not set forth in the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the causes of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c(p)(2).) By contradicting prior discovery responses, a party cannot create a triable issue of material fact. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-1090.) The trial court “give[s] great weight to admissions made in discovery and disregard[s] contradictory and self-serving affidavits of the party.” (Id. at 1087.) “Summary adjudication motions are procedurally identical to summary judgment motions.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) “A party may not avoid summary judgment based on mere speculation and conjecture . . . but instead must produce admissible evidence raising a triable issue of fact.” (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.)

In the context of a summary judgment motion “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 252.) “If the defendant in a run-of-the-mill civil case moves for summary judgment . . . based on the lack of proof of a material fact, the judge must ask himself [or herself] not whether he [or she] thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” (Id.) A triable issue of material fact is found “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) “Summary adjudication is warranted only if the motion completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.)

Issue No.1: First Cause of Action

“A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) “[A]ttorney’s fees are not an ordinary item of actual damages.” (Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1, 8.) “The general rule of nonallowability of attorney’s fees and of other similar unrecoverable general expenses is one of long-standing.” (Trails Trucking, Inc. v. Bendix-Westinghouse etc. Air Brake Co. (1973) 32 Cal.App.3d 519, 524.) “Damages awarded should, insofar as possible, place plaintiff in the same position [she] would have been had the contract been performed, but [she] should not be awarded more than the benefit [she] would have received had the promisor performed.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 123.)

Defendants’ Evidence

Defendants present the undisputed facts that: (1) on June 9, 2006, Plaintiff obtained a mortgage loan (the “Loan”) from Coldwell Banker Home Loans (“Coldwell”) in the amount of $504,000.00 and the Loan is secured by a Deed of Trust recorded against the Property (UMF 1); (2) also in June of 2006, Plaintiff obtained a $94,000.00 second loan from Coldwell, which was secured by a junior lien on the Property (the “Junior Lien) (UMF 2); (3) the beneficial interest in the Loan was subsequently assigned to WFB and at all relevant times PHH serviced the Loan on behalf of WFB (UMF 3); (4) after Plaintiff defaulted on the Loan in 2009, foreclosure proceedings were initiated against the Property (UMF 4); (5) on August 15, 2012, the Property was sold at a Trustee’s Sale and ownership of the Property reverted to WFB (UMF 5); (6) on August 28, 2012, before the Trustee’s Deed Upon Sale was recorded, Plaintiff filed the First Lawsuit (UMF 6); and (7) on February 25, 2014, Plaintiff entered into the Settlement Agreement with Defendants and the First Lawsuit was dismissed with prejudice. (UMF 7.)

Defendants present the declaration of Williams who declares that: (1) at all relevant times pertinent to her declaration, the Ghidotti Firm was counsel of record for Defendants in this lawsuit (Williams Decl. at ¶ 1); (2) the Ghidotti Firm’s file reflects that on August 24, 2015, the Ghidotti Firm sent a letter to Sarah J. Golden of Golden & Timbol and the letter, among other things, requested that Plaintiff complete several forms that were needed for PHH to review Plaintiff’s loan for a modification (Id. at ¶ 2 and Exhibit 1); (3) the Ghidotti Firm’s file reflects that Golden & Timbol were Plaintiff’s attorneys of record in the First Lawsuit (Id. at ¶ 3); and (4) per her review of the Ghidotti Firm’s file, no notice was received to suggest that Golden & Timbol were no longer Plaintiff’s attorneys in the First Action at the time of the August 24, 2015 letter and the Ghidotti Firm’s file reflects that the Ghidotti Firm received no response to the August 24, 2015 letter. (Id.)

Defendants present the declaration of Felicano who relevantly declares that: (1) he is a Senior Analyst for PHH and it is part of his responsibility to authenticate and verify the accuracy of PHH business records (Feliciano Decl. at ¶ 1); (2) for purposes of his declaration, he obtained and reviewed from PHH’s systems of record information relating to the mortgage loan at issue in this action (Id.); (3) PHH policy dictates that when employees manually enter data relating to loans on PHH’s systems, the PHH employees have personal knowledge or have gained personal knowledge of that information and have a business duty to enter the information into the system at or near the time they acquired such knowledge (Id.); (4) these computerized records are created and maintained in the regular course of PHH’s business as a loan servicer and PHH relies on those records in the ordinary course to conduct its business (Id.); and (5) on February 25, 2014, Plaintiff and Defendants entered into the Settlement Agreement and the First Lawsuit was dismissed with prejudice. (Id. at ¶ 6.)

Feliciano further declares that: (1) the Settlement Agreement obligated Defendants to review the financial information Plaintiff previously submitted and “determine if any additional information or documents are needed, and make a final decision on whether there are any viable loan medication offers” and “[i]f a permanent modification is not offered and accepted, and/or Plaintiff fails to release the Junior Lien” Defendants were authorized to “immediately record a Trustee’s Deep Upon Sale without further notice and initiate post-sale eviction proceedings (Id. at ¶ 7 and Exhibit 2); (2) on August 24, 2015, after reviewing the documentation submitted by Plaintiff, Defendants, through their counsel, sent Plaintiff’s prior counsel a letter identifying additional information needed to conduct a modification review (Id. at ¶ 8 and Exhibit 3); (3) on October 14, 2015, PHH sent a letter directly to Plaintiff that again identified additional information needed to conduct a modification review (Id. at ¶ 9 and Exhibit 4); (4) having not received a response to these letters, PHH sent yet another letter dated November 12, 2015 that again asked for additional information (Id. at ¶ 10 and Exhibit 5); (5) PHH did not receive the information requested in the three letters and as such Plaintiff was removed from the loan modification review in December of 2015, and PHH sent a letter to Plaintiff dated December 2, 2015 which advised her of such removal (Id. at ¶ 11 and Exhibit 6); and (6) as a result of Plaintiff’s failure to respond to PHH and the subsequent removal from the loan modification review, the Trustee’s Deed Upon Sale was recorded on January 7, 2016 (Id. at ¶ 12 and Exhibit 7.)

Plaintiff’s Evidence

In opposition to Defendants’ motion, Plaintiff relevantly declares that: (1) on November 27, 2013, her former counsel and Golden & Timbol who represented her in the First Lawsuit, sent all of her current financial information as a complete modification package to Edward Treder who was the attorney for PHH (Johansen Decl. at ¶ 7 and Exhibit 3); (2) on or about February 27, 2014, she executed the Settlement Agreement at issue in this case (Id. at ¶ 8); (3) on April 22, 2014, she called PHH and asked about the status of her loan modification review and was told that no review was taking place (Id. at ¶ 9); and (4) on April 24, 2014, Spare called her and told her that they knew who was handling her loan modification but that no decision had been made yet and that someone would get back to her but no one got back to her. (Id. at ¶ 10.)

Plaintiff presents the declaration of Sarah Golden (“Golden”) who declares that: (1) she, along with her law firm, previously represented Plaintiff in the First Lawsuit (Golden Decl. at ¶ 1); (2) her firm represented Plaintiff from approximately August 2012 to January 2016 in connection with the First Lawsuit and Settlement Agreement, and Edward Treder represented PHH in the First Lawsuit (Id. at ¶ 2); (3) she understands that PHH is a defendant in this lawsuit and contends that it engaged an attorney named Christopher Bauer to prepare and send a letter dated August 14, 2015 to her (Id. at ¶ 3); (4) on or about August 24, 2015, her firm was located at the address stated in the Christopher Bauer letter (Id. at ¶ 4); and (5) on March 27, 2014, she e-mailed Edward Treder to request a status update on the pending modification review that was promised in the Settlement Agreement. (Id. at ¶ 8 and Exhibit 1.)

Plaintiff presents the declaration of Servando Timbol (“Timbol”) who relevantly declares that: (1) Timbol, along with his firm, previously represented Plaintiff in the First Lawsuit (Timbol Decl. at ¶ 1); (2) Timbol’s firm represented Plaintiff from approximately August 2012 to January 2016 in connection with the First Lawsuit and Settlement Agreement, and Edward Treder represented PHH in the First Lawsuit (Id. at ¶ 2); (3) Timbol understands that PHH is a defendant in this lawsuit and contends that it engaged an attorney named Christopher Bauer to prepare and send a letter dated August 14, 2015 (Id. at ¶ 3); and (4) on or about August 24, 2015, Timbol’s firm was located at the address stated in the Christopher Bauer letter. (Id. at ¶ 4.)

Plaintiff presents the declaration of Matthew Nietschke (“Nietschke”) who relevantly declares that: (1) his firm represented Plaintiff from approximately August 2012 to January 2016 in connection with the First Lawsuit and Settlement Agreement, and Edward Treder represented PHH in the First Lawsuit (Nietschke Decl. at ¶ 2); (2) he was involved in negotiating and exchanging communications with Mr. Treder to finalize the Settlement Agreement (Id. at ¶ 3); (3) after the Settlement Agreement was executed, he followed up with Mr. Treder several times including on December 8, 2014 when he called and left a voice message for Mr. Treder requesting an update on the modification process, however, he did not receive a response (Id. at ¶ 4); (4) he understands that PHH is a defendant in this lawsuit and contends that it engaged an attorney named Christopher Bauer to prepare and send a letter dated August 14, 2015 to her (Id. at ¶ 5); and (5) on or about August 24, 2015, his firm was located at the address stated in the Christopher Bauer letter. (Id. at ¶ 6.)

Plaintiff presents the declaration of James T. Ryan (“Ryan”) who relevantly declares that according to its own business rules, PHH was required to quickly review the documents submitted and act with reasonable diligence to collect any additional information from the borrower in order to evaluate the financial package. (Ryan Decl. at ¶ 6.) Ryan’s declaration states that in response to Plaintiff’s seventh set of Requests for Production of Documents, in which Plaintiff sought documents to uncover e-mails that are referenced in PHH’s Consolidated Notes Log and such request for production was served on PHH on January 31, 2020 (Ryan Decl. at ¶ 7; Ryan Decl. at Appendix of Exhibits at Exhibit 6), PHH served responses indicating that such documents would be produced if any exist. (Id. at ¶ 8; Id. at Appendix of Exhibits at Exhibit 7.) Ryan’s declaration, however, misstates the evidence as Exhibit 7 clearly states that despite a diligent search, PHH was still unable to find the requested e-mails. (Appendix of Exhibits at Exhibit 7.)

Analysis

The Court finds that Defendants have met their burden in showing that there is no triable issue of material fact with respect to whether Defendants reviewed the documentation Plaintiff submitted. While Plaintiff alleged that Defendants breached the Settlement Agreement by not timely reviewing the financial information she submitted (SAC at ¶ 50), under Zorb there was no deadline for Defendants to review the financial information as the Settlement Agreement imposed no such deadline and Plaintiff has not presented any evidence, pursuant to Zorb, that she demanded review of her financial information. Under Melendrez, any failure of PHH to follow its own internal policies does not constitute a breach. Defendants presented evidence that PHH: (1) reviewed Plaintiff’s financial information; (2) requested additional information, which it had authority to do pursuant to the Settlement Agreement; and (3) did not receive such information from Plaintiff. Thus, Defendants have met their burden in showing that there is no triable issue of fact with respect to the element of breach.

Plaintiff has not met her burden in showing that there is a triable issue of fact with respect to the element of breach. Plaintiff presents no admissible evidence that PHH failed to review Plaintiff’s financial information at all for purposes of modification.

While Plaintiff asserts that Defendants have not set forth any evidence of damages, the Court finds that Plaintiff’s argument is misplaced. Defendants showing there is no triable issue of material fact with respect to breach, as Plaintiff presents to evidence to indicate that PHH failed to review her financial package. “Under general contract principles, when one party breaches a contract the other party is entitled to damages sufficient to make that party whole.” (Postal Instant Press, Inc. v. Sealy (1996) 43 Cal.App.4th 1704, 1708-1709.) Due to there being no triable issue of fact with respect to breach, there is no basis for Plaintiff to obtain damages and as such Defendants need not present evidence with respect to damages as the evidence presented shows no triable issue of fact with respect to breach of the Settlement Agreement and thus Plaintiff is not entitled to damages.

Therefore, there is no triable issue of material fact with respect to breach and damages. In sum, summary judgment is appropriate as to the first cause of action in the SAC.

Issue No.2: Second Cause of Action

“Under California law, every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” (Rosenfeld v. JPMorgan Chase Bank, N.A. (2010) 732 F.Supp.2d 952, 968.) “The covenant is based on general contract law and the long-standing rule that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Id.) “In California, the factual elements necessary to establish a breach of the covenant of good faith and fair dealing are: (1) the parties entered into a contract; (2) the plaintiff fulfilled his obligations under the contract; (3) any conditions precedent to the defendant’s performance occurred; (4) the defendant unfairly interfered with the plaintiff’s rights to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant’s conduct.” (Id.) “The issue of whether the implied covenant of good faith and fair dealing has been breached is ordinarily a question of fact unless only one inference [can] be drawn from the evidence.” (Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 509.)

The Court incorporates the recitation of legal standards, evidence, and analysis with respect to the first cause of action and applies it to the second cause of action.

Defendants assert that Plaintiff’s second cause of action fails because she cannot establish the elements of her breach of contract claim. Pursuant to the second cause of action in the SAC, Plaintiff alleges that: (1) Defendants breached the implied covenant of good faith and fair dealing by waiting approximately 20 months to attempt to discharge its contractual obligations under the Settlement Agreement (Id. at ¶ 56); (2) Defendants did not act in good faith and with the necessary diligence to review the financial information that Plaintiff submitted, which defeated the purpose of the Settlement Agreement (Id.); and (3) the delay was unreasonable, unfairly frustrated the agreed common purposes of the Settlement Agreement, and disappointed Plaintiff’s reasonable expectations thereby depriving her of the benefits of the Settlement Agreement. (Id.)

As indicated above, the Settlement Agreement placed no deadline on Defendants to review the Settlement Agreement and Defendants have presented evidence that they reviewed Plaintiff’s loan modification information. Defendants have met their burden in showing that they did not breach the implied covenant of good faith and fair dealing. Plaintiff has failed to meet her burden that there is a triable issue of fact with respect to the breach of implied covenant of good faith and fair dealing.

In sum, summary judgment is appropriate as to the second cause of action in the SAC.

Defendants’ motion for summary judgment or, in the alternative, summary adjudication is GRANTED in its entirety.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 21st day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court

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