Case Number: EC065702 Hearing Date: May 25, 2018 Dept: A

Dellalyan v JPMorgan Chase Bank

MOTION FOR SUMMARY JUDGMENT & MOTION FOR SANCTIONS

Item: 9

Case: EC065702

Hearing Date: 5/25/18

Action Filed: 8/24/16

Trial Date: 9/17/18

MP: Defendant, JPMorgan Chase Bank, N.A.

RP: Plaintiffs, Yervand Dellalyan and Mariam Semizyan

ALLEGATIONS IN SECOND AMENDED COMPLAINT:

Plaintiffs Yervand Dellalyan and Mariam Semizyan obtained a loan secured by a deed of trust recorded on their real property. They allege that Defendants JP Morgan Chase Bank, NA and Quality Loan Service Corporation violated statutory requirements for using California’s non-judicial foreclosure procedures to collect the debt.

The second amended complaint (“SAC”) filed March 23, 2017, alleges causes of action for: (1) Violation of Civil Code §2923.6; (2) Violation of Civil Code §2923.7; (3) Declaratory Relief pursuant to Civil Code §2924.12 (removed by demurrer); and (4) Violation of Business and Professions Code §17200 (removed by demurrer)

RELIEF REQUESTED:

1. Summary Judgment

2. Monetary Sanctions

DISCUSSION:

This hearing concerns Defendant JPMorgan Chase Bank, N.A.’s (hereinafter, “Defendant”) motion for summary judgment directed at the SAC and Defendant’s motion for discovery sanctions.

These motions were initially set to be heard on February 16, 2018, but were continued to this date in order to provide time for Plaintiff’s counsel to move to be relieved as counsel. The Court granted the motion to be relieved as counsel for Plaintiffs’ counsel on March 2, 2018.

1. Motion for Summary Judgment

Under CCP §437c, Defendant’s burden is to demonstrate that Plaintiffs cannot establish essential elements in their causes of action or that an affirmative defense bars the claims. The two remaining causes of action in the SAC are the first cause of action for violation of Civil Code §2923.6 and the second cause of action for violation of Civil Code §2923.7.

a. First Cause of Action for Violation of Civil Code section 2923.6

The first cause of action pleads that Defendant violated Civil Code §2923.6 by recording notices on Plaintiffs’ property while an application for a loan modification was pending. Under Civil Code §2923.6, when an application for a loan modification is pending, a lender is barred from recording a default, recording a notice of trustee’s sale, or conducting a sale.

Plaintiffs allege in paragraph 21 that they submitted a complete first lien loan modification application to Defendant. In paragraph 22, Plaintiffs allege that Defendant did not provide a written letter that approved or denied the application. In paragraph 23, Plaintiffs allege that Defendant caused a notice of trustee’s sale to be recorded.

Defendant provides evidence in its Separate Statement of Facts (“SSF”) to show that there is no evidence that Plaintiffs submitted a complete loan application. Defendant provides evidence that it did not receive any application for a loan modification from Plaintiffs in or around 2016 (SSF 7). The notice of trustee’s sale was recorded on August 2, 2016 (SSF 16). Further, Plaintiffs acknowledged in discovery responses that they have no evidence in writing to support their claim that they submitted a complete loan modification in June 2016 (SSF 44).

This evidence shows that Plaintiffs cannot establish the essential element in Civil Code §2923.6 that they had a complete loan application pending when Defendant recorded the notice of trustee’s sale on August 2, 2016. Since Defendant has provided evidence to show that Plaintiffs cannot establish an essential element of their first cause of action, Defendant has met its burden of proof.

Under CCP §437c, the burden is shifted to Plaintiffs to offer evidence creating a dispute of fact with Defendant’s evidence. Plaintiffs did not file any opposition papers or evidence. As a result, Defendant’s evidence is undisputed.

Therefore, the undisputed facts show that Plaintiffs cannot establish their first cause of action.

b. Second Cause of Action for Violation of Civil Code §2923.7

The second cause of action pleads that the Defendant violated §2923.7. This section required Defendant to provide a single point of contact upon request. Plaintiffs alleged in paragraphs 27 and 28 that they requested a single point of contact and that Defendants failed to furnish a single point of contact.

Defendant provides evidence that on October 17, 2011, it sent a letter identifying their dedicated customer assistant specialist, with whom they could discuss their mortgage loan, and provided the person’s telephone number, text message number, facsimile number, and mail address (SSF 45 and 46). Defendant provides evidence that in December of 2013, it sent a letter identifying the new dedicated customer assistant specialist and provided the person’s telephone number, text message number, facsimile number, and mail address (SSF 47). Defendant provides evidence that in February 2014, it sent a letter identifying another new dedicated customer assistant specialist and provided the person’s telephone number, text message number, facsimile number, and mail address (SSF 48). These facts demonstrate that Defendant provided a single point of contact to Plaintiffs and kept them apprised when a new person had been designated as their single point of contact.

This evidence shows that Plaintiffs cannot establish the essential element in Civil Code §2923.7 that Defendant did not provide a single point of contract. Since Defendant has provided evidence to show that Plaintiffs cannot establish an essential element of their second cause of action, Defendant has met its burden of proof.

Under CCP §437c, the burden is shifted to Plaintiffs to offer evidence creating a dispute of fact with Defendant’s evidence. Plaintiffs did not file any opposition papers or evidence. As a result, Defendant’s evidence is undisputed.

Therefore, the undisputed facts show that Plaintiffs cannot establish their second cause of action.

Therefore, the Court will grant Defendant’s motion for summary judgment because the undisputed facts show that Plaintiffs cannot establish the first and second causes of action in their SAC.

2. Motion for Discovery Sanctions

Defendant requests that the Court impose monetary sanctions on Plaintiffs on the ground that Plaintiffs failed to honor an agreement to serve responses. Defendant seeks sanctions under CCP §2023.030, which authorizes the Court to impose monetary sanctions on a party that misuses discovery. Defendant argues that Plaintiffs have misused discovery by failing to respond to an authorized method of discovery.

This matter arises from requests for production that were served on May 24, 2017. After Plaintiffs served responses, Defendant filed a motion to compel further responses on the ground that they were insufficient. The matter was set for September 8, 2017, but Defendant requested that the hearing be taken off calendar.

In the pending motion, Defendant states that it took the hearing off calendar because Plaintiffs had agreed to produce responsive documents. Defendant states that these documents were never provided.

This does not identify any failure to respond to an authorized method of discovery. Plaintiffs served responses to Defendant’s requests for production and, as noted above, Defendant took off calendar a motion to compel further responses. Although Plaintiffs failed to honor a private agreement to produce documents, this is not a failure to respond to an “authorized” method of discovery. Instead, it was a failure to provide responses for a private agreement.

Finally, under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613.) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. (McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.)
Here, the problem presented by Plaintiffs’ failure to produce the documents will be made moot because, as discussed above, the Court will grant Defendant’s motion for summary judgment. As a result, any sanctions order is not necessary to accomplish the purpose of discovery because there will not be any further discovery in this action.

Therefore, the Court will deny Defendant’s motion for discovery sanctions.

RULING:

1. Grant summary judgment.

2. Deny motion for discovery sanctions.