2010-00080670-CU-FR

Land/Home Financial Services, Inc. vs. Edward F. Gunz

Nature of Proceeding:    Motion for Summary Judgment and/or Adjudication

Filed By:   Friedman, Ethan K.

Plaintiff’s Motion for Summary Judgment/Summary Adjudication is denied.

Plaintiff’s Evidentiary Objections are overruled.

Plaintiff’s Notice of Motion seeks summary adjudication of “each element of each
cause of action, and of all defenses to liability.”  However the separate statement
seeks adjudication of only causes of action:  Negligence, Intentional
Misrepresentation, Negligent Misrepresentation, and Breach of Contract.  The notice of
motion does not track the separate statement, in violation of CRC 3.1350(b).  The
court will rule on the request for summary adjudication of causes of action set forth in
the separate statement, not the notice of motion.

Plaintiff is a lender that contracts with residential mortgage brokers who submit
consumer mortgage loans to Land/Home for underwriting, approval and funding.
Plaintiff contends that on April 29, 2008, Defendant Gunz applied for and signed loan  documents, a promissory note and a deed of trust, and other documents,  for the
purchase of real property at 909 E. Camelback Rd. #1093, Phoeniz AZ.   (UMF 17, 19,
and 20)  All documents were notarized by Cynthia Espinoza, Notary Public-
Sacramento County.  (UMF 21) Gunz had attended a seminar presented by Lee
Loomis at a Sacramento area hotel.  Loomis persuaded the attendees that his
investment program was legal and worthwhile.  Gunz believed he could make money
without having to invest any money.  Gunz admits he provided Loomis personal
identifying information including his drivers license number and his social security
number, and that he signed several documents; however he does not recall ever
signing documents regarding a loan or purchase of the real property and believes that
any such signature on those documents is forged.  The Loan documents require
monthly payments of $1,719.08 and $85,500.55 from Gunz toward the purchase price.
Gunz never paid any money towards the purchase.  The loan amount in the closing
documents was $252,000 (UMF 25).  Land Home funded the loan and sold it to an
institutional investor.  (UMFs 42-43) The Investor foreclosed on the Loan and plaintiff
contends it has been damaged in the loan amount because it indemnified the Investor
for losses suffered due to Dr. Gunz’ alleged default. (UMF 46 Waite Decl. ¶ 33.

In support of the motion, plaintiff contends that Gunz’ signature on the documents is
not forged because the notarization of the documents creates a presumption of the
validity of the signatures.   Plaintiff contends that Gunz’ failure to read the documents
presented to him is not an excuse that would relieve him from his obligation to plaintiff.
Plaintiff points to Gunz’ deposition testimony in which he states that the signatures
“may” be forged, that the documents may not have been filled out at the time he
signed them, and that did not remember signing any documents regarding a purchase
of the property.

In opposition, Gunz states that he did not authorize or negotiate the purchase of the
property at issue but that Loomis or his agents negotiated the purchase contract and
related contracts as part of a Ponzi scheme. Gunz attaches as Ex. B a Federal
Complaint against Loomis alleging that Loomis falsified documents on behalf of
victims.  Gunz states that he is a victim of the Ponzi scheme and states he did not sign
any of the loan documents pertaining to the subject property. (Declaration of Gunz)

Plaintiff argues that the Court must disregard Gunz’ Declaration because it contradicts
his deposition testimony. “Admissions or concessions made during the course of
discovery (deposition testimony) govern and control over contrary declarations lodged
at hearing on a motion for summary judgment.”  Visueta v. General Motors Corp.
(1991) 234 Cal.App.3d 1609, 1613. The Court is permitted to disregard a declaration
which attempts to controvert “an admission or concession on the part of the party
opposing summary judgment…” D’Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 21.  However, the Court has reviewed the deposition testimony and does not
find that it is directly contradictory to the declaration.  The D’Amico rule does not
require disregarding a declaration when it is compared to equivocal deposition
testimony. The contradictory testimony is disregarded only when the testimony or
response is an admission or concession which demonstrates that no material issue of
fact exists.  The contradiction between deposition testimony must be clear and
unambiguous, not fragmentary and equivocal responses made during a deposition.
Price v Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482; Benvenidez v San Jose
Police Dept. (1999) 71 Cal.App.4th 853, 861-862.   The Court does not find that the
deposition testimony is clearly and unambiguously contradictory to the declaration.             Plaintiff’s evidentiary objections go more to the weight, rather than the admissibility of
Gunz’ declaration.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.