This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 06:29:02 (UTC).

MARY TAFERNER VS TOMMY DE SANTIS

Case Summary

On 02/08/2017 MARY TAFERNER filed a Contract - Other Contract lawsuit against TOMMY DE SANTIS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0080

  • Filing Date:

    02/08/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

TAFERNER MARY

Defendant

DE SANTIS TOMMY

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

FRAWLEY PATRICK ESQ.

DAVID JILL S

BROWN DAVID WAYNE TAFT

 

Court Documents

REQUEST FOR ENTRY OF DEFAULT

1/26/2018: REQUEST FOR ENTRY OF DEFAULT

ANSWER TO THE FIRST AMENDED COMPLAINT

2/2/2018: ANSWER TO THE FIRST AMENDED COMPLAINT

Unknown

2/13/2018: Unknown

Minute Order

2/16/2018: Minute Order

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

NOTICE OF CASE MANAGEMENT ORDER

3/22/2018: NOTICE OF CASE MANAGEMENT ORDER

Minute Order

3/22/2018: Minute Order

SUBSTITUTION OF ATTORNEY

4/17/2018: SUBSTITUTION OF ATTORNEY

NOTICE OF APPEARANCE OF HUSKINSON, BROWN & HEIDENREICH AS COUNSEL FOR PLAINTIFF

4/24/2018: NOTICE OF APPEARANCE OF HUSKINSON, BROWN & HEIDENREICH AS COUNSEL FOR PLAINTIFF

Ex Parte Application

12/7/2018: Ex Parte Application

Minute Order

12/7/2018: Minute Order

Notice of Ruling

12/11/2018: Notice of Ruling

Declaration

12/21/2018: Declaration

Ex Parte Application

12/21/2018: Ex Parte Application

Notice of Ruling

12/21/2018: Notice of Ruling

Minute Order

12/21/2018: Minute Order

Declaration

12/21/2018: Declaration

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

26 More Documents Available

 

Docket Entries

  • 02/19/2019
  • Docketat 10:00 AM in Department 37; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 02/11/2019
  • Docketat 08:30 AM in Department 37; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 01/30/2019
  • DocketNotice (of Case Reassignment); Filed by Mary Taferner (Plaintiff)

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  • 01/22/2019
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/21/2018
  • Docketat 08:30 AM in Department 37; Ex-Parte Proceedings

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  • 12/21/2018
  • DocketMinute Order ((Ex-Parte Proceedings)); Filed by Clerk

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  • 12/21/2018
  • DocketDeclaration (in Support of Plaintiff's Ex Parte Application); Filed by Mary Taferner (Plaintiff)

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  • 12/21/2018
  • DocketEx Parte Application (to continue trial); Filed by Mary Taferner (Plaintiff)

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  • 12/21/2018
  • DocketNotice of Ruling (Regarding Plaintiff's Ex Parte Application to Continue Trial and All Motion and Discovery Dates); Filed by Mary Taferner (Plaintiff)

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  • 12/21/2018
  • DocketDeclaration (of Forensic Accountant Expert in Support of Plaintiff's Ex Parte Application); Filed by Mary Taferner (Plaintiff)

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55 More Docket Entries
  • 05/09/2017
  • DocketMinute Order

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  • 05/01/2017
  • DocketCase Management Statement; Filed by Plaintiff/Petitioner

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  • 05/01/2017
  • DocketCASE MANAGEMENT STATEMENT

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  • 04/04/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/04/2017
  • DocketOSC-RE Other (Miscellaneous); Filed by Clerk

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  • 04/04/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 04/04/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/08/2017
  • DocketCOMPLAINT FOR RECOVERY OF USURIOUS INTEREST

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  • 02/08/2017
  • DocketSUMMONS

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  • 02/08/2017
  • DocketComplaint; Filed by Mary Taferner (Plaintiff)

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Tentative Rulings

Case Number: ****0080 Hearing Date: April 13, 2022 Dept: 37

HEARING DATE: April 13, 2022

CASE NUMBER: ****0080

CASE NAME: Mary Taferner v. Tommy De Santis

MOVING PARTY: Defendants, Tommy De Santis and Cheryl De Santis

OPPOSING PARTY: Plaintiff, Mart Taferner

TRIAL DATE: August 2, 2022

PROOF OF SERVICE: OK.

PROCEEDING: Motion for Summary Judgment, or in the Alternative, Summary Adjudication

OPPOSITION: March 29, 2022

REPLY: April 8, 2022.

TENTATIVE: Defendants’ Motion for Summary Judgment is granted.

Background

This action arises out of a series of oral loan agreements entered into between Plaintiff Mary Taferner (“Plaintiff”), her former husband and non-party John Taferner (“Mr. Taferner”) and Defendant Tommy De Santis (“Defendant”). Plaintiff alleges that, between August 15, 2007 and October 20, 2010, Plaintiff and Mr. Taferner entered into an unspecified number of oral agreements with Defendants, where Defendant agreed to loan Plaintiff and Mr. Taferner a total of $64,000 for uses other than personal, family, or household uses. Plaintiff alleges that, between the year 2010 through the year 2015, Plaintiff and Mr. Taferner used community funds to pay interest on the principal payment of $64,000, totaling approximately $102,500 in interest payments. Plaintiff alleges the amount of interest paid on the loan agreement constitutes a usurious, or unconscionable or exorbitant, rate of interest and violates the amount of interest which may be charged for loans made for purposes other than personal, family, or household uses, under California Constitution, Article XV Section 1(2). Plaintiff, additionally, alleges that Defendant engaged in fraud to induce Plaintiff to enter into the loan agreements. Plaintiff alleges that, while Defendant represented to Plaintiff that the subject $64,000 would constitute a loan, Defendant, in reality, considered the $64,000 paid to Plaintiff and Mr. Taferner to be an “investment”, for which Defendant claims he has not received a return.

On September 15, 2020, Plaintiff filed the operative Second Amended Complaint, alleging the following causes of action against Defendant: (1) Declaratory Relief; (2) Fraud—For Intentional or Negligent Misrepresentation; (3) Fraud—For Concealment; (4) Fraud—For Promise Without Intent to Perform; and (5) Damages to Recover Usurious Interest Payments.

On November 24, 2020, Plaintiff filed an Amendment to her Second Amended Complaint, substituting Cheryl De Santis, Defendant’s wife, as Doe 1.

Defendants Tommy De Santis and Cheryl De Santis (hereinafter, “Defendants”) move for summary judgment against Plaintiff’s Second Amended Complaint, or alternatively, summary adjudication as to the following issues:

  1. First Cause of Action for Declaratory Relief: Defendants are entitled to judgment on the first cause of action because Defendants did not enter into a contract with Plaintiff, and the statute of limitations is a complete defense.

  2. Second Cause of Action for Fraud (Intentional or Negligent Misrepresentation): Defendants are entitled to judgment on the second cause of action because the undisputed evidence establishes that one or more elements cannot be established, and the statute of limitations is a complete defense.

  3. Third Cause of Action for Fraud (Concealment): Defendants are entitled to judgment on the third cause of action because the undisputed evidence establishes that one or more elements cannot be established, and the statute of limitations is a complete defense.

  4. Fourth Cause of Action for Fraud (Promise with no Intent to Perform): Defendants are entitled to judgment on the fourth cause of action because the undisputed evidence establishes that one or more elements cannot be established, and the statute of limitations is a complete defense.

  5. Fifth Cause of Action for Damages to Recover Usury Interest Payments: Defendants are entitled to judgment on the fifth cause of action to recover damages for usury interest rate because (1) Mary was not a party to the agreement at issue; (2) the statute of limitations bars any recovery; (3) the interest rate by definition was not more than 10%; and (4) Mary was not the borrower.

Evidentiary Objections

None.

Discussion

I. Legal Standard

“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.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., 437c, subdivision (p)(2):

A defendant or cross-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 cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

II. Discussion

The Court begins discussion on Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication with Issue 5 and Plaintiff’s fifth cause of action. The parties’ moving and opposing papers begin with a discussion of Issue 5 and Plaintiff’s fifth cause of action, and, in the interest of clarity, the Court does the same.

A. Issue 5: Fifth Cause of Action (Damages to Recover Usurious Interest Payments)

Defendants advance four (4) arguments in order to demonstrate that Plaintiff’s fifth cause of action fails as a matter of law. First, Defendants argue that the subject agreement did not constitute a “loan” or “forbearance” and, therefore is not susceptible to California usury laws and regulations. Second, Defendants argue that Plaintiff was not a party to the agreement or a “borrower” within the meaning of California Constitution Article XV, Section 1, and therefore, Plaintiff may not maintain an action for usury. Third, Defendants argue that Plaintiff is unable to maintain a cause of action for usury as the statute of limitations bars her cause of action. Lastly, Defendants argue that the interest rate contemplated by the agreement was not a “usury” interest rate as it did not exceed the legal maximum permitted.

“Usury is defined as ‘the charging of interest for a loan or forbearance on money in excess of the legal maximum.’ [Citation.]” (Junkin v. Golden West Foreclosure Service, Inc. (2010) 180 Cal.App.4thh 1150, 1155.) “Usury” is expressly prohibited by Article XV, Section 1 of the California Constitution, which provides: “No person, association, copartnership or corporation shall by charging any fee, bonus, commission, discount or other compensation receive from a borrower more than the interest authorized by this section upon any loan or forbearance of any money, goods or things in action.” (Cal. Const., art XV, 1.)

“The essential elements of usury are: (1) The transaction must be a loan or forbearance; (2) the interest to be paid must exceed the statutory maximum; (3) the loan and interest must be absolutely repayable by the borrower; and (4) the lender must have a willful intent to enter into a usurious transaction.” (Ghirardo v. Antonioli (1994) 8 Cal.4thh 791, 798.)

(1) Sub-Issue 1: Agreement Does Not Constitute a Loan or Forbearance

First, Defendants argue that the transaction does not constitute a “loan” or “forbearance” and, therefore, the agreement is not susceptible to California usury laws.

“The constitutional proscription against usury applies by its express terms only to a ‘. . . loan or forbearance of any money, goods or things in action.’ [Citation.] Without a loan or forbearance, usury cannot exist. [Citations.]” (Ghirardo, supra, 8 Cal.4th. at p. 801-802; see generally 13A Cal.Jur.3d Consumer and Borrower Protection Laws 659 [“A transaction that is not in the nature of a loan or forbearance is not affected by the usury law but is outside its purview.”]; see generally 4 Miller & Starr, Cal. Real Estate Law (2d ed. 1989) 10:3, p. 651 [“The first essential element of a usurious transaction is a loan or forbearance of money.”].) “A loan of money is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed.” (Civ. Code, 1912 [“ ‘Loan of Money’ defined”].) “A ‘forbearance’ of money is the giving of further time for repayment of an obligation or an agreement not to enforce a claim at its due date.” (Boerner v. Colwell Co. (1978) 21 Cal.3d 37, 44, fn. 7.) “The advancing of money as a hazardous investment in an enterprise must be distinguished from the advancing of money as a loan. Where the principal sum is subject to business hazards, and repayment of the loan is subject to the contingency of profits being earned, there is no usury.” (13A Cal.Jur.3d, supra, Consumer and Borrower Protection Laws 661.)

Following a review of the evidence submitted by Defendants, the Court finds that Defendants have sufficiently shifted the burden to Plaintiff with regard to this first issue and have demonstrated that the payments made by Defendants to Mr. Taferner and Plaintiff were not “loans”.

Defendants submit the declarations of Mr. Taferner and Defendant Tommy De Santis (“Defendant Tommy”) describing the oral agreement made with regard to the subject transaction. Mr. Taferner declares that he was a licensed general contractor with a Class B general contractors license, and was in the business of purchasing duplexes, renovating the duplexes, and, thereafter, selling the duplexes for a profit. (John Taferner Decl. (“John Decl.”), 4; Tommy DeSantis Decl. (“Tommy Decl.”), 4.) In the year 2007, Mr. Taferner, Plaintiff, Defendant Tommy and Defendant Cheryl De Santis, decided to meet one another for a social gathering at a Coldstone Creamery. (John Decl., 4; Tommy Decl., 4.) During this social gathering, Mr. Taferner told Defendant Tommy about his business regarding the purchase, improvement, and subsequent sale of duplexes. (John Decl., 4; Tommy Decl., 4.) Defendant Tommy informed Mr. Taferner that he would be interested in investing in one of Mr. Taferner’s projects. (John Decl., 5; Tommy Decl., 4.) While Mr. Taferner informed Defendant Tommy he did not have an available project for investment at the time, Mr. Taferner told Defendant Tommy he would let him know if an opportunity arose in the future. (John Decl., 5; Tommy Decl., 4.) A few months later, Mr. Taferner approached Defendant Tommy with an investment opportunity. (John Decl., 6; Tommy Decl., 5.) Mr. Taferner told Defendant Tommy that if he gave Mr. Taferner money, Mr. Taferner “would use it to invest in one or more of [Mr. Taferner’s] projects”. (John Decl., 6; Tommy Decl., 5.) Mr. Taferner informed Defendant Tommy that “he should anticipate” a rate of return on his investment of approximately “ten percent”. (John Decl., 6; Tommy Decl., 5.) Mr. Taferner additionally informed Defendant Tommy that the return payments would be paid by one or more of the companies Mr. Taferner currently had an ownership interest. (John Decl., 7; Tommy Decl., 5.) Mr. Taferner told Defendant Tommy that he was “hopeful of returning the principal and interest to Tommy within a reasonable time, but there were no guarantees”, and Defendant Tommy declares that he understood “there would be no guarantees of a return on the investment or that the [sic] principal would be returned.” (John Decl., 7; Tommy Decl., 6.) Defendant Tommy was “happy” with the terms of this agreement, and accepted Mr. Taferner’s proposal. (Tommy Decl., 5.) Defendant Tommy “trusted” Mr. Taferner and “knew he would do his best and make wise decisions” regarding Defendant Tommy’s investment. (Tommy Decl., 6.)

Over the next five (5) years, Defendant Tommy wrote five (5) checks, totaling $64,000, to Mr. Taferner personally. (Tommy Decl., 7; Defs.’ Index of Exhibits, Ex. 1-5.) Thereafter, between the year 2011 to 2013, Tommy declares he received a return on his investment, pursuant to checks received from Mr. Taferner’s three (3) businesses, in an amount totaling $59,500. (Tommy Decl., 14; Defs.’ Index of Exhibits, Ex. 6.)

The Court finds that the evidence submitted by Defendants sufficiently demonstrates that the agreement contemplated by Defendant Tommy and Mr. Taferner does not fall into the definition of a “loan” as described by Article XV, Section 1 of the California Constitution. As noted above, a “loan” is defined as “a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed.” (Civ. Code, 1912.) Defendants demonstrate that the money delivered to Mr. Taferner by Defendant Tommy was an investment, as opposed to a loan, as the parties both agreed, and contemplated during the negotiation period, that “there would be no guarantees of a return on the investment or that the principal would be returned.” (Tommy Decl., 6.) The parties did not agree that Mr. Taferner would be responsible and liable to repay Defendant Tommy “a sum equivalent to that which [Mr. Taferner] . . . borrowed”. (Civ. Code, 1912.) Rather, the evidence submitted by Defendants establishes that there was a mere “hope” for a return of Defendant Tommy’s investment, as opposed to a concrete agreement that Mr. Taferner would be required to repay Defendant Tommy the “sum equal” of his investment. (John Decl., 7; Tommy Decl., 6.) Accordingly, Defendants have submitted sufficient evidence demonstrating that the agreement and subsequent payments made by Defendant Tommy were not “loans”, but “hazardous investment[s]”, and therefore, Defendants’ agreement is not susceptible to California usury prohibitive laws. (13A Cal.Jur.3d, supra, Consumer and Borrower Protection Laws 661 [“The advancing of money as a hazardous investment in an enterprise must be distinguished from the advancing of money as a loan. Where the principal sum is subject to business hazards, and repayment of the loan is subject to the contingency of profits being earned, there is no usury.”].) The burden now shifts to Plaintiff to demonstrate that the agreement and subsequent payments made by Defendant Tommy do constitute a “loan” within the meaning of Article XV, Section 1 of the California Constitution.

Following a review of the evidence submitted by Plaintiff, the Court finds that Plaintiff has failed to create a triable issue of fact as to whether or not the payments made by Defendant Tommy constitute a “loan”. Rather, the evidence submitted by Plaintiff demonstrates that the undisputed facts establish that the agreement and subsequent payments were in fact, and intended to be, an investment with no guarantee of return. The only relevant evidence relied upon by Plaintiff to support Plaintiff’s contention that the payments made by Defendant Tommy were “loans”, as opposed to investments, are Plaintiff’s own statements made during her deposition as well as the statements made within Plaintiff’s declaration. During her deposition, when Plaintiff was asked about the nature and character of the payments made by Defendant Tommy, Plaintiff testified that her husband, Mr. Taferner represented to Plaintiff that the payments were “loan[s].” (Pl.’s Index of Exhibits, Ex. N at p. 94:5-96:5 [testifying that Mr. Taferner told her, “it was a loan from Tommy.”], p. 92:2-6.) Additionally, throughout Plaintiff’s declaration, Plaintiff refers to the payments made by Defendant Tommy as “loans”. (Mary Taferner Decl. (“Mary Decl.”), 3 [“John and I were the borrowers on small money loans from Defendants.”], 11 [“Once John received the loans, John directed me to handle the money as a loan.”].) However, the additional evidence submitted by Plaintiff indisputably demonstrates that the substance and function of the payments made by Defendant Tommy to Mr. Taferner did not constitute a “loan”, within the meaning of Article XV, Section 1 of the California Constitution. (Milana v. Credit Discount Co. (1945) 27 Cal.2d 335, 341 [“ ‘‘No case is to be judged by what the parties appear to be or represent themselves to be doing, but by the transaction as disclosed by the whole evidence, and if from that it is in substance a receiving or contracting for the receiving of usurious interest for a loan or forbearance of money, the parties are subject to the statutory consequences, no matter what device they may have employed to conceal the true character of their dealings.’ ”].)

Plaintiff’s additional submitted evidence supports a finding that the payments made by Defendant Tommy were not “loans”, but a “hazardous investment”. (13A Cal.Jur.3d, supra, Consumer and Borrower Protection Laws 661 [“The advancing of money as a hazardous investment in an enterprise must be distinguished from the advancing of money as a loan. Where the principal sum is subject to business hazards, and repayment of the loan is subject to the contingency of profits being earned, there is no usury.”].) Plaintiff submits the deposition testimony of her husband, Mr. Taferner, who describes the substance of the transaction between himself and Defendant Tommy. Mr. Taferner testified that, after Defendant Tommy made an investment in one of Mr. Taferner’s projects, he would receive an investment payment only after, and only in the event, the project was completed and a profit was turned. (Pl.’s Index of Exhibits, Ex. L at p. 148:5-11, p. 182:1-7.) Mr. Taferner testified that he would try his best to ensure that the projects Defendant Tommy invested in would prove profitable, in order to increase the likelihood that Defendant Tommy would receive a return on his investment. (Pl.’s Index of Exhibits, Ex. L at p. 182:15-183:6.) Additionally, Defendant Tommy understood the hazardous nature of his investments in Mr. Taferner’s projects and business, testifying in his own deposition that he does not believe he is “owed” any investments which currently remain unpaid by Mr. Taferner because the money given to Mr. Taferner was only an “investment”, and not a loan. (Pl.’s Index of Exhibits, Ex. H at p. 57:16-15.) The evidence submitted by Plaintiff confirms that the payments made by Defendant Tommy pursuant to the parties’ oral agreement were not “loans”, where Defendant Tommy was guaranteed a return of “a sum equivalent to that which [Mr. Taferner] . . . borrowed”. (Civ. Code, 1912.)

Additionally, while Mr. Taferner testifies, and Plaintiff attests within her declaration that, when Defendant Tommy made an investment, Mr. Taferner would instruct Plaintiff to pay Defendant Tommy $1,000 or $2,000 in the interim before the property had sold, this does not create a triable issue of fact because this fact does not bring the investments within the definition of a “loan”. Mr. Taferner testified during his deposition that once an investment was received from Defendant Tommy, Mr. Taferner would instruct Plaintiff to pay Defendant Tommy “$1,000 for every $10,000” invested, in addition to the sum Defendant Tommy would receive following the completion of the respective project. (Pl.’s Index of Exhibits, Ex. L at p. 181:12-182:7.) However, this fact does not change the character of the investments into a “loan” because, it remains, Defendant Tommy was not guaranteed a return of “a sum equivalent to that which [Mr. Taferner] . . . borrowed”. (Civ. Code, 1912.) Rather, Mr. Taferner merely paid Defendant Tommy a modest sum of the amount borrowed, with no guarantee the bulk of his investment would be returned.

Based on the foregoing, the Court finds that the evidence submitted by Plaintiff fails to create a triable issue of fact. Accordingly, Defendants’ Motion for Summary Adjudication with respect to Plaintiff’s fifth cause of action is GRANTED, as the indisputable evidence demonstrates the payments made by Defendant Tommy to Mr. Taferner were not a “loan” and, thus, are not subject to California usury laws. As the Court has found Plaintiff is unable to prove a necessary element of her fifth cause of action, the Court does not find it necessary to address the additional issues raised within Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

B. Issue 1: First Cause of Action for Declaratory Relief

Defendants argue Plaintiff’s first cause of action for declaratory relief is subject to summary adjudication as the cause of action is entirely contingent upon Plaintiff’s fifth cause of action, which fails as a matter of law. In Opposition, Plaintiff does not dispute that the first cause of action is dependent upon on the fifth cause of action. Additionally, pursuant to the Court’s review of Plaintiff’s Second Amended Complaint, the Court finds this observation to be true. (Second Amended Complaint (“SAC”), 4, 5 [“An actual controversy has arisen and now exists between plaintiff and defendant concerning their respective rights and duties in that plaintiff contends that the money given by defendant were loans to which he received usurious payments in violation of California law whereas the defendant disputes these contentions and contends that the money paid was an investment . . . .”], 6-8.)

For the reasons outlined in subsection (A) of this Court’s Order, Defendant’s Motion for Summary Adjudication as to Plaintiff’s first cause of action for declaratory relief is granted, as the Court has found Plaintiff’s fifth cause of action is susceptible to Defendants’ Motion for Summary Adjudication.

C. Issue 2: Second Cause of Action for Fraud (Intentional or Negligent Misrepresentation)

Defendants argue Plaintiff’s second cause of action for fraud based upon intentional or negligent misrepresentation is subject to summary adjudication on two (2) grounds. First, Defendants argue that Plaintiff is unable to establish the elements of a cause of action for fraud based upon misrepresentation. Second, Defendants argue that Plaintiff’s cause of action for fraud is barred by the applicable statute of limitations.

(1) Elements of Cause of Action

First, Defendants argue Plaintiff’s second cause of action is susceptible to summary adjudication because Plaintiff is unable to establish one or more elements necessary to prevail on the cause of action. Most pertinent to the Court’s inquiry is Defendants’ contention that Plaintiff will be unable to prove the sixth element of Plaintiff’s second cause of action, that is, that Plaintiff suffered damages or harm as a result of Defendants’ alleged misrepresentation.

“To establish a claim for fraudulent misrepresentation, the plaintiff must prove: ‘(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.’ ” (Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4th 429, 434, 113 Cal.Rptr.3d 790 (Perlas ), italics omitted.)

The Court finds it relevant to, initially, articulate the allegations advanced within Plaintiff’s Second Amended Complaint with respect to Plaintiff's second cause of action. Plaintiff alleges that Defendants falsely represented to Plaintiff that the payments made by Defendant Tommy to Mr. Taferner were “investments” as opposed to “loans”. (SAC, 11.) In line with this alleged misrepresentation, Defendants additionally misrepresented that the corresponding sums repaid by Plaintiff to Defendants constituted a return on Defendants’ investments, as opposed to a return on Defendants’ loan and interest payments. (Id., 10.) Plaintiff alleges that the above representations made by Defendants were, in fact, false because the payments made by Defendant Tommy were indeed “loans”, and not “investments”, and therefore, the corresponding sums repaid by Plaintiff to Defendants were actually returns upon Defendants’ loan and interest payments. (Id., 12 [“The truth was the money paid to the Defendant was a return of his principal loan and with interest far exceeding the amount allowed under the usury laws of the state of California.”].) Plaintiff alleges that she relied upon Defendants’ misrepresentations and, as a result, paid to Defendants “interest payments” far exceeding the amount allowed under the usury laws of the state of California. (Id., 14-15.) Plaintiff alleges that the usurious “interest payments” paid by her to Defendants constitute her damages, “in a sum according to proof but not less than $100,000.” (Id., 15-16.)

As stated in the preceding subsections of this Court’s Order, “[t]he constitutional proscription against usury applies by its express terms only to a ‘. . . loan or forbearance of any money, goods or things in action.’ [Citation.] Without a loan or forbearance, usury cannot exist. [Citations.]” (Ghirardo, supra, 8 Cal.4th. at p. 801-802; see generally 13A Cal.Jur.3d Consumer and Borrower Protection Laws 659 [“A transaction that is not in the nature of a loan or forbearance is not affected by the usury law but is outside its purview.”].) “The first essential element of a usurious transaction is a loan or forbearance of money.” (See generally 4 Miller & Starr, Cal. Real Estate Law (2d ed. 1989) 10:3, p. 651.)

Here, Plaintiff alleges she suffered harm and damages as a result of Defendants’ alleged misrepresentation because she paid to Defendants unlawful, or usurious “interest payments”, “in a sum . . . not less than $100,000.” (SAC, 15-16.) However, the Court finds that Plaintiff is unable to substantiate this allegation and is similarly unable to establish the element of damages or harm with respect to her second cause of action. The Court previously found, within subsection (A) of this Court’s Order, that the payments made by Defendant Tommy to Mr. Taferner did not constitute a “loan”, but instead, constituted an investment. Accordingly, as “[t]he first essential element of a usurious transaction is a loan or forbearance of money,” the Court determined that Plaintiff would be unable to maintain the fifth cause of action for “Damages to Recover Usurious Interest Payments”. The Court’s finding regarding the character of Defendant Tommy’s payments additionally prevents Plaintiff’s ability to adequately prove damages or harm with respect to her second cause of action. The payments allegedly made by Plaintiff in reliance upon Defendants’ misrepresentations cannot be characterized as usurious interest payments because these payments were not made with respect to a “loan or forbearance”. “Without a loan or forbearance, usury cannot exist.” (Ghirardo, supra, 8 Cal.4th. at p. 801-802.) Accordingly, Plaintiff is unable to prove that she was damaged by the payment of usury “interest payments” to Defendants.

Accordingly, Defendants’ Motion for Summary Adjudication with respect to Plaintiff’s second cause of action is GRANTED, as the indisputable evidence demonstrates Plaintiff's inability to prove the element of harm or damages. As the Court has found Plaintiff is unable to prove a necessary element of her second cause of action, the Court does not find it necessary to address the additional issues raised within Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

D. Issue 3: Third Cause of Action for Fraud (Concealment)

Defendants argue Plaintiff’s third cause of action for fraud based upon concealment is subject to summary adjudication on two (2) grounds. First, Defendants argue that Plaintiff is unable to establish the elements of a cause of action for fraud based upon misrepresentation. Second, Defendants argue that Plaintiff’s cause of action for fraud is barred by the applicable statute of limitations.

(1) Elements of Cause of Action

First, Defendants argue Plaintiff’s third cause of action is susceptible to summary adjudication because Plaintiff is unable to establish one or more elements necessary to prevail on the cause of action. Most pertinent to the Court’s inquiry is Defendants’ contention that Plaintiff will be unable to prove the fifth element of Plaintiff’s third cause of action, that is, that Plaintiff suffered damages or harm as a result of Defendants’ alleged concealment.

The elements of an action for fraud based on concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Mktg. W., Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)

Similar to Plaintiff’s second cause of action, Plaintiff’s third cause of action alleges that Plaintiff suffered damages as a result of Defendants’ alleged concealment by way of Plaintiff’s payment of usury “interest payments”. (SAC, 15-18.)

Accordingly, for the same reasons articulated in subsection (C) of this Court’s Order, Defendants’ Motion for Summary Adjudication is GRANTED, with respect to Plaintiff’s third cause of action due to Plaintiff’s inability to establish the element of damages. As the Court has found Plaintiff is unable to prove a necessary element of her third cause of action, the Court does not find it necessary to address the additional issues raised within Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

E. Issue 4: Fourth Cause of Action for Fraud (Promise without Intent to Perform)

Defendants argue Plaintiff’s third fourth cause of action for fraud based upon concealment is subject to summary adjudication on two (2) grounds. First, Defendants argue that Plaintiff is unable to establish the elements of a cause of action for fraud based upon a promise without intent to perform. Second, Defendants argue that Plaintiff’s cause of action for fraud is barred by the applicable statute of limitations.

(1) Elements of Cause of Action

First, Defendants argue Plaintiff’s third cause of action is susceptible to summary adjudication because Plaintiff is unable to establish one or more elements necessary to prevail on the cause of action. Most pertinent to the Court’s inquiry is Defendants’ contention that Plaintiff will be unable to prove the sixth element of Plaintiff’s fourth cause of action, that is, that Plaintiff suffered damages or harm as a result of Defendants’ alleged promise.

“Certain broken promises of future conduct may . . . be actionable. Civil Code section 1710, subdivision (4) defines one type of deceit as ‘A promise, made without any intention of performing it.’ ” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) In order to prevail on a cause of action for fraud based upon a promise made without an intent to perform, a plaintiff must prove the following elements: (1) defendant made a promise to plaintiff, (2) defendant did not intend to perform this promise when he or she made the promise, (3) defendant intended that plaintiff rely upon the promise, (4) plaintiff did reasonably rely upon the promise, (5) defendant did not perform the promised act, and (6) defendant’s failure to perform the act promised was a substantial factor in causing plaintiff harm. (CACI 1902.)

Similar to Plaintiff’s second cause of action, Plaintiff’s fourth cause of action alleges that Plaintiff suffered damages as a result of Defendants’ alleged fraudulent promise by way of Plaintiff’s payment of usury “interest payments”. (SAC, 15-16, 19-21.)

Accordingly, for the same reasons articulated in subsection (C) of this Court’s Order, Defendants’ Motion for Summary Adjudication is GRANTED, with respect to Plaintiff’s fourth cause of action due to Plaintiff’s inability to establish the element of damages. As the Court has found Plaintiff is unable to prove a necessary element of her fourth cause of action, the Court does not find it necessary to address the additional issues raised within Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

Conclusion

Defendants’ Motion for Summary Judgment is GRANTED.



Case Number: ****0080    Hearing Date: April 30, 2021    Dept: 37

HEARING DATE: April 30, 2021

CASE NUMBER: ****0080

CASE NAME: Mary Taferner v. Tommy De Santis

MOVING PARTY: Plaintiff, Mary Taferner

OPPOSING PARTY: Defendant Tommy De Santis

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Motion for Protective Order

OPPOSITION: April 20, 2021

REPLY: April 23, 2021

TENTATIVE: Plaintiff’s motion is denied. Plaintiff is to give notice.

Background

This action arises out of loan agreements between Plaintiff, Mary Taferner (“Plaintiff”), her former husband and non-party John Taferner (“Mr. Taferner”) and Defendant, Tommy De Santis. (“Defendant”) Plaintiff alleges that between August 15, 2007 and October 20, 2010, the parties agreed for Defendant to loan Plaintiff and Mr. Taferner $64,000. Plaintiff and Mr. Taferner allegedly paid on this loan through 2015. Plaintiff contends that money given by Defendant was money to which he received usurious interest payments in violation of California law, whereas Defendant contends that this money was an investment for which he has not received repayment.

Plaintiff’s operative First Amended Complaint (“FAC”), filed October 11, 2017, alleges the following causes of action: (1) declaratory relief, (2) Fraud for intentional or negligent misrepresentation, (3) fraud for concealment, (4) fraud for promise without intent to perform, (5) damages to recover usurious interest payments.

Plaintiff now moves for a protective order as follows: “prohibiting Defendant Tommy De Santis (“Mr. De Santis” or the “Defendant”) and/or Defendant’s Attorney, Bill Cumming and/or Cumming & Associates, APLC, from requiring Plaintiff to pay for Defendant’s copies of 6-8 boxes of subpoenaed records.” Defendant opposes the motion.

Meet and Confer 

A motion for a protective order under Code of Civil Procedure, section 2031.060 must be accompanied by a meet and confer declaration.  (Code Civ. Proc., ; 2031.060 subd. (a).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., ; 2016.040.)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)  “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.”  (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.)  Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery.  (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-34, citing Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437.)  

Plaintiff submits the declaration of her counsel, Jill S. David (“David”) in support of the instant motion. David attests that this motion pertains to Defendant’s Request for Production of Documents, Set Two, dated February 5, 2020. (David Decl. ¶ 2, Exh. 1.) (the “RFPs”) According to David, the parties met and conferred about the RFPs as well as the cost to produce documents responsive to the RFPs. (David Decl. ¶¶ 8-16, Exhs. 3-4.) Exhibits 3-4 to the David Declaration demonstrate that the parties discussed the issues raised in this motion during their meet and confer efforts.

Thus, the David Declaration is sufficient for purposes of Code of Civil Procedure section 2031.060.

Discussion

  1. Legal Authority

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” (Code Civ. Proc. ; 2031.060, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. ; 2031.060, subd. (b.)

  1. Analysis

  1. Requested Protective Order

Plaintiff seeks a protective order regarding documents responsive to Requests for Production, Set Two as follows: (1) that Defendant inspect the documents as requested; or (2) pay for them; or (3) obtain them directly from the source without trying to penalize Plaintiff for not providing Defendant the free copies they so desire. (Motion, 5.) Requests for Production, Set Two asks Plaintiff to “review YOUR responses to all the previously served Requests” and produce additional documents which have not been produced. (Motion, 1-2.)

According to Plaintiff, this protective order is required because the party requesting discovery is required to pay any special costs for “non-routine discovery,” such as subpoenaed records. (Id.) As such, because Defendant has alleged failed to obtain responsive documents directly from the financial institutions which would have generated them, Plaintiff requests the instant protective order governing her discovery obligations. (Id.)

In opposition, Defendant contends that the motion should be denied because Plaintiff’s requested protective order is unintelligible. (Opposition, 2-4.) According to Defendant, no protective order is necessary because Defendant did not file a Motion to Compel Further Responses pertaining to the RFPS and is within his rights to wait for the parties to exchange documents before trial. (Id.)

It is undisputed that this motion pertains to a supplemental request to produce documents, which was served on February 5, 2020. Plaintiff served responses on March 16, 2020. There was no motion to compel further responses. The response offered to make certain documents available for inspection. The code does not require a party to provide copies, although many people do. No protective order is necessary or appropriate.

For these reasons, Plaintiff’s motion is denied.

  1. Request for Attorney’s Fees

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.”  (Code Civ. Proc., ; 2023.030 (a).)  Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., ; 2023.010 (d).)  

Plaintiff requests monetary sanctions in the amount of $1,028.85 in connection with this motion. Having denied Plaintiff’s motion, Plaintiff’s request for sanctions is also denied.

Defendant also requests $1,275 in attorney’s fees in connection with this motion on the grounds that Plaintiff should be sanctioned for filing a frivolous motion. It appears there has been a serious lack of communication between counsel, so no sanctions will be awarded.

Conclusion

Plaintiff’s motion is denied. Plaintiff is to give notice.



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