This case was last updated from Los Angeles County Superior Courts on 08/31/2021 at 00:19:53 (UTC).

ARMEN OGANESYAN VS PHH MORTGAGE CORPORATION, ET AL.

Case Summary

On 11/13/2018 ARMEN OGANESYAN filed a Contract - Insurance 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 ANTHONY MOHR and MAURICE A. LEITER. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4762

  • Filing Date:

    11/13/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Insurance

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ANTHONY MOHR

MAURICE A. LEITER

 

Party Details

Plaintiff

OGANESYAN ARMEN

Defendants

PHH MORTGAGE CORPORATION

DAVID NUNEZ INSURANCE AGENCY INC

CALIFORNIA FAIR PLAN

NUNEZ ALEX

FIRE INSURANCE EXCHANGE

Attorney/Law Firm Details

Plaintiff Attorney

HAINES JAMES WALTER

Defendant Attorneys

AWANYAI STEPHANIE IJEOMA

ZIMET MARC JOSEPH

KLEIN ELISE D.

SCHER GREGORY BERNARD

RUBIN STACY H.

SASSO MARCOS DANIEL

NIKDEL SUSAN

 

Court Documents

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

6/28/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

Request for Dismissal

7/1/2021: Request for Dismissal

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

7/12/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

Notice of Settlement

5/11/2021: Notice of Settlement

Order to Show Cause re: Dismissal (Settlement)

5/12/2021: Order to Show Cause re: Dismissal (Settlement)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE ALEXANDER JOKO #12272

3/30/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE ALEXANDER JOKO #12272

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

3/30/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Notice - NOTICE OF WITHDRAWAL OF COUNSEL OF RECORD

4/1/2021: Notice - NOTICE OF WITHDRAWAL OF COUNSEL OF RECORD

Notice of Ruling

4/1/2021: Notice of Ruling

Declaration - DECLARATION OF IVETTA AVANESOV IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANT PHH MORTGAGE CORPORATIONS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION O

3/16/2021: Declaration - DECLARATION OF IVETTA AVANESOV IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANT PHH MORTGAGE CORPORATIONS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION O

Opposition - OPPOSITION TO DEFENDANT PHH MORTGAGE CORPORATIONS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

3/16/2021: Opposition - OPPOSITION TO DEFENDANT PHH MORTGAGE CORPORATIONS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

Declaration - DECLARATION OF ARMEN OGANESYAN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT PHH MORTGAGE CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJU

3/16/2021: Declaration - DECLARATION OF ARMEN OGANESYAN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION OF DEFENDANT PHH MORTGAGE CORPORATION'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJU

Separate Statement

3/16/2021: Separate Statement

Notice of Appearance

3/23/2021: Notice of Appearance

Response - RESPONSE TO SEPARATE STATEMENT IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

3/25/2021: Response - RESPONSE TO SEPARATE STATEMENT IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Declaration - DECLARATION SUPPLEMENTAL DECLARATION INJ SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

3/25/2021: Declaration - DECLARATION SUPPLEMENTAL DECLARATION INJ SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

3/25/2021: Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Notice of Appearance - NOTICE OF APPEARANCE REVISED NOTICE OF APPEARANCE OF SUSAN N. NIKDEL AS COUNSEL FOR DEFENDANT

3/26/2021: Notice of Appearance - NOTICE OF APPEARANCE REVISED NOTICE OF APPEARANCE OF SUSAN N. NIKDEL AS COUNSEL FOR DEFENDANT

88 More Documents Available

 

Docket Entries

  • 07/12/2021
  • Docketat 08:30 AM in Department 54, Maurice A. Leiter, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Held

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  • 07/12/2021
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by Clerk

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  • 07/01/2021
  • DocketRequest for Dismissal; Filed by Armen Oganesyan (Plaintiff)

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  • 06/28/2021
  • Docketat 08:30 AM in Department 54, Maurice A. Leiter, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Held - Continued

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  • 06/28/2021
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by Clerk

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  • 06/21/2021
  • Docketat 10:30 AM in Department 54, Maurice A. Leiter, Presiding; Jury Trial (with a 10 day estimate) - Not Held - Vacated by Court

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  • 06/11/2021
  • Docketat 10:00 AM in Department 54, Maurice A. Leiter, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 05/12/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 05/11/2021
  • DocketNotice of Settlement; Filed by Armen Oganesyan (Plaintiff)

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  • 04/01/2021
  • DocketNotice of Ruling; Filed by PHH Mortgage Corporation (Defendant)

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111 More Docket Entries
  • 12/20/2018
  • DocketProof of Personal Service; Filed by Armen Oganesyan (Plaintiff)

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  • 12/20/2018
  • DocketAffidavit of Reasonable Diligence; Filed by Armen Oganesyan (Plaintiff)

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  • 12/20/2018
  • DocketProof of Personal Service; Filed by Armen Oganesyan (Plaintiff)

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  • 12/20/2018
  • DocketProof of Personal Service; Filed by Armen Oganesyan (Plaintiff)

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  • 12/14/2018
  • DocketAnswer; Filed by Alex Nunez (Defendant)

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  • 11/16/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/13/2018
  • DocketComplaint; Filed by Armen Oganesyan (Plaintiff)

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  • 11/13/2018
  • DocketCivil Case Cover Sheet; Filed by Armen Oganesyan (Plaintiff)

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  • 11/13/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 11/13/2018
  • DocketSummons (on Complaint); Filed by Clerk

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Tentative Rulings

Case Number: 18STCV04762    Hearing Date: March 30, 2021    Dept: 54

Superior Court of California

County of Los Angeles

Armen Oganesyan,

Plaintiff,

Case No.:

18STCV04762

vs.

Tentative Ruling

PHH Mortgage Corporation, et al.,

Defendants.

Hearing Date: March 30, 2021

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendant PHH Mortgage Corporation

Responding Party: Plaintiff Armen Oganesyan

T/R: DEFENDANT’s MOTION FOR SUMMARY JUDGMENT IS DENIED.

DEFENDANT’s MOTION FOR SUMMARY ADJUDICATION of THE fifth CAUSE OF ACTION and claim for attorney’s fees IS DENIED.

DEFENDANT’s MOTION FOR SUMMARY ADJUDICATION of THE fourth CAUSE OF ACTION IS GRANTED.

DEFENDANT TO GIVE NOTICE.

The Court considers the moving papers, opposition and reply.

BACKGROUND

This is a bad faith insurance action arising out of a claim for losses caused by wildfire. On November 19, 2018, Plaintiff Armen Oganesyan sued Defendants PHH Mortgage Corporation, David Nunez Insurance Company, Alex Nunez, Fire Insurance exchange and California Fair Plan, asserting causes of action for (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) professional negligence; (4) breach of contract; (5) negligence; and (6) reformation.

Plaintiff alleges he had a mortgage on his residence with Defendant PHH. Plaintiff would pay PHH the mortgage payments as well as money for insurance and property taxes. In turn, PHH would pay insurance premiums and property taxes on behalf of Plaintiff. Plaintiff, through his insurance agent Defendant Alex Nunez, obtained fire insurance from Defendant CFP because the residence was in a high-risk wildfire area. The CFP policy did not include coverage for personal property loss in the event of a fire. Plaintiff instructed Nunez to obtain an additional policy that would cover such losses and losses unrelated to fire (known as “wrap-around” coverage.) Plaintiff alleges that Nunez obtained the Farmers policy and represented that it contained wrap-around coverage. The Farmers policy covered June 2017 through June 2018.

On December 5, 2017, Plaintiff’s residence was completely destroyed by wildfire. Plaintiff made claims with both CFP and Farmers. CFP denied Plaintiff’s claim for failure to pay the premiums. Farmers denied Plaintiff’s claim, asserting the policy did not cover personal property loss from fire. PHH provided Plaintiff with some funds to begin rebuilding; CFP and Farmers have continued to deny benefits under the policies.

EVIDENCE OBJECTIONS

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (CCP § 437c(q).) Plaintiff improperly objects to Defendant’s undisputed material facts. To the extent that Plaintiff objects to paragraphs 9-12 of Defendant Nunez’s declaration, those objections are OVERRULED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) 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.” (Id.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Defendant PHH is named in the fourth and fifth causes of action. It moves for summary judgment, or in the alternative summary adjudication of each of those causes of action.

A. Fourth Cause of Action for Breach of Contract

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Defendant contends Plaintiff’s cause of action for breach of contract fails because Plaintiff did not perform Plaintiff’s duties under the contract, Defendant did not breach the contract and Plaintiff cannot establish damages caused by any breach.

1. Plaintiff’s Performance Under the Deed of Trust

Section 5 of the Deed of Trust - the operative contract – provides: “Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire . . . for which Lender requires.” (Decl. Schwiner, Exh. 1 § 5.) “If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender’s option and Borrower’s expense.” (Id. § 5.) Section 3 provides: “Borrower shall pay to Lender . . . (c) premiums for any and all insurance required by Lender under Section 5,” and “Borrower shall promptly furnish to Lender all notices of amounts to be paid under this section.” (Id. § 3.)

Defendant asserts Plaintiff failed to perform under the Deed of Trust because Plaintiff did not inform Defendant of the CFP policy before the fire (UMF ¶ 21), Plaintiff did not inform CFP that Defendant was Plaintiff’s lender (UMF ¶¶ 22-23), and Plaintiff, directly or through Nunez, paid the premiums on the CFP policy. (UMF ¶ 3, 7, 31.) This is sufficient to establish Plaintiff failed to perform under the Deed of Trust. The burden shifts to Plaintiff to establish a triable issue of fact.

In opposition, Plaintiff contends Plaintiff paid taxes and the Farmers insurance premiums into an escrow/impound account each month to cover fire insurance. (AUMF ¶ 14.) Plaintiff asserts Defendant accepted the Farmer’s policy as evidence of fire insurance but failed to determine that the Farmers policy did not contain fire coverage. (Opp. UMF ¶¶ 21-23, AUMF ¶¶ 8-14.) Plaintiff states that Defendant, as a practice, “does not distinguish policies based on peril and only looks at policy limits on the evidence of insurance despite PHH requiring coverage for fire.” (AUMF ¶ 20.) Plaintiff argues that if Defendant had noticed there was no fire coverage, Defendant would have informed Plaintiff of the lack of coverage. Plaintiff asserts Defendant put Plaintiff “under a false belief that there was sufficient coverage for fire peril.” (AUMF ¶¶ 21-22.)

Regardless of whether Defendant noticed the Farmers policy did not cover fire losses, it is undisputed that Plaintiff failed to apprise Defendant of the CFP policy and any premiums due under the CFP policy as required by sections 3 and 5 of the Deed of Trust. In addition, the Deed of Trust provides that the duty to obtain fire insurance falls on Plaintiff and Defendant “may” obtain its own fire insurance if it so chooses. Plaintiff failed to perform under the Deed of Trust.

Plaintiff has failed to establish a triable issue of fact as to performance or excuse for non-performance. The Court need not address whether Defendant breached the contract or whether Plaintiff suffered damages.

Defendant’s motion for summary adjudication of the fourth cause of action is GRANTED.

B. Fifth Cause of Action for Negligence

The elements of negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) Defendant contends it did not owe Plaintiff a duty of care.

Defendant contends “a financial institution does not owe a duty of care to a borrower when the institution acts within its traditional role as a lender of money.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 66.) This issue, which Defendant claims is “well settled” (Reply at 8), usually arises in the context of whether a lender owes a buyer a duty of care when negotiating a loan modification. (See Id.; Rossetta v. CitiMortgage, Inc. (2017) 18 Cal.App.5th 628, 640–642; Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1180–1182; Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 948–950.) Each of these cases analyzes whether a lender has a duty to a borrower under the six-factor test set forth in Biakanja v. Irving (1958) 49 Cal.2d 647: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct, and (6) the policy of preventing future harm. (Id. at 650.)

Neither Defendant nor Plaintiff provides authority addressing the issue at hand: whether a lender owes a borrower a duty of care to verify insurance coverage, particularly where the lender collects money from the borrower for insurance payments, makes the payments on the borrower’s behalf, and reserves the right to obtain insurance if it concludes the borrower has not complied with the insurance requirement. Defendant merely contends it owed no duty to Plaintiff because of its role as lender, relying primarily on Lueras and various non-binding federal cases.

This blanket assertion is insufficient. Whether a lender has a duty of care to a borrower is decided on a case-by-case basis. (Lueras, supra, 221 Cal.App.4th at 62.) “‘Even when the lender is acting as a conventional lender,’ however, ‘the no-duty rule is only a general rule.’” (Rossetta, supra, 18 Cal. App. 5th at 638, quoting Jolley v. Chase Home Finance, LLC. (2013) 213 Cal. App. 4th 872, 901.) The cases addressing a lender’s duty of care analyze the case-specific facts and balance the factors in Biakanja. Defendant makes no effort to apply the Biakanja factors to the facts of this case. Defendant has not shown it did not owe a duty of care to Plaintiff as a matter of law.

Defendant also asserts Plaintiff cannot state a cause of action for negligence that arises out of a mere breach of contract. This argument fails because Defendant has not established it did not owe Plaintiff a separate duty of care.

Defendant’s motion for summary adjudication of the fifth cause of action is DENIED. Defendant’s motion for summary judgment is DENIED.

C. Attorney’s Fees

Defendant moves for summary adjudication of Plaintiff’s claim for attorney’s fees. CCP § 437c(t) prohibits summary adjudication of an issue of damages that does not completely dispose of a cause of action without prior stipulation between the parties and approval from the Court. Defendant did not seek such approval.

Defendant’s motion for summary judgment of the claim for attorney’s fees is DENIED.

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