19-CIV-03335 FRANK XUEREB VS. VI NGUYEN, ET AL.

FRANK XUEREB VI NGUYEN
GRACE WILSON PRO/PER

PLAINTIFF, FRANK XUEREB’S MOTION FOR SUMMARY ADJUDICATION TO FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT TENTATIVE RULING:

Plaintiff Frank Xuereb’s Motion for Summary Adjudication, filed 10-15-19, is DENIED. Plaintiff seeks summary adjudication of the 6-14-19 Complaint’s First Cause of Action for breach of contract. Notwithstanding Defendant Nguyen’s failure to file a responsive Separate Statement (see Code Civ. Proc. § 437c(b)(3)), the Court finds that Plaintiff has not met his initial burden under § 437c, and thus the motion must be denied.

In this case, Plaintiff and Defendant were are former spouses. Prior to their marriage, Plaintiff’s mother loaned the couple $100,000 to purchase a home. Plaintiff claims that the parties executed a note for the loan, which note Defendant denies signing. The parties forgot about the note for over 20 years and Defendant and his family remembered it about three weeks before a family law trial before the Hon. Elizabeth Hill of this court. Post-trial, Judge Hill issued judgment, including a Statement of Decision, resolving the marital issues, but held that since the parties’ note predated the marriage, she had no jurisdiction to divide the debt and equalize. Statement of Decision, Xuereb v. Nguyen, Case No. Fam0119299 filed October 10, 2018 (Exhibit B to Defendant’s Request for Judicial Notice). Plaintiff, who claims to be the current owner of the note, seeks to collect on the note from Defendant.

First, the breach of contract claim (alleging Def. Nguyen has breached a 1996 Promissory Note) hinges on Plaintiff’s contention that he now stands in the shoes of his deceased mother, who was the Lender on the Note. Plaintiff’s Separate Statement states that after his mother’s death in 2011, her Estate assigned the Note to The Xuereb Family Marital Trust (UMF No. 7), which in turn, as alleged, later assigned its rights under the Promissory Note against Def. Nguyen to Plaintiff. UMF No. 17 (see 10-15-19 Grace Wilson Decl., ¶8; Ex. E). However, while it may have been the parties’ intent, the Agreement at issue (Ex. E to the Wilson Decl.) does not, at least on its face, purport to assign any right to Plaintiff. Plaintiff Frank Xuereb’s and his attorney/sister Grace Wilson’s thoughts on what the Agreement says or means are not controlling.

Second, as separate grounds for denying the motion, Plaintiff’s Separate Statement does not sufficiently identify the damages owed on the breach of contract claim. CACI 303 (damages is an element of the claim). Any factual dispute as to the specific amount of damages owed precludes summary adjudication, because summary adjudication of a partial cause of action is not permitted. Code Civ. Proc. § 437c(f)(1) (“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action …”); see also Paramount Petroleum Corp. v. Sup.Ct. (2014) 227 Cal.App.4th 226, 243. Here, even assuming arguendo Plaintiff has standing to allege breach of the Promissory Note, and assuming the other elements of the contract claim are met, the Separate Statement does not identify the specific amount of damages owed. UMF No. 30 only refers to a lien on the property in the amount of $223,382.69 (referring to a Deed of Trust). Further, Plaintiff’s Memorandum of Points and Authorities (MPAs) conflicts with Plaintiff’s Notice of Motion. The MPAs states that as of 10-11-19, Plaintiff owes $111,691, representing ½ of the principal + interest on the Note (MPAs at 8), whereas the Notice of Motion states that Plaintiff seeks a Judgment in the amount of “$111,691 in principal.”

Plaintiff’s 10-15-19 Request for Judicial Notice is ruled upon as follows:
 Ex. A (Promissory Note). DENIED. There is no file stamp indicating the document was filed with the Court. Furthermore, if the Court takes judicial notice of the document, it would only take judicial notice of its filing, but the document’s documents.  Ex. B (excerpts from Statement of Decision). GRANTED. Evid. Code § 452(d). The Court notes that Plaintiff submitted only excerpts from a 46-page Statement of Decision. The Court takes judicial notice of the entire document.  Ex. C (Deed of Trust). GRANTED. Evid. Code § 452(c).  Ex. D (Grant Deed). GRANTED. Evid. Code § 452(c).