Case Number: BC507591    Hearing Date: August 08, 2014    Dept: M

Tentative Ruling
Hale Moku, LLC, v. Kinecta Federal Credit Union
BC507591 (c/w 13U00894; r/t SC118957

This is an action for damages and to set aside a credit bid foreclosure sale under a deed of trust on residential property. Plaintiffs (only one of which was the actual borrower) allege that even though they were in the process of modifying the subject secured home loan and were in active review for a loan modification, Defendants nevertheless foreclosed on the property. Plaintiffs’ SAC filed on February 18, 2014 (which was actually the second version of the SAC, the first version having been stricken by the Court) asserted 14 causes of action against the defendants, by plaintiffs Hale Moku, LLC, Douglas Reed, and (new plaintiff) Pollyanna Properties. In that pleading, the plaintiffs essentially alleged that Defendants engaged in, inter alia, violations of numerous sections of the Homeowner Bill of Rights. See, Motion, Exh. 16. Defendants filed the motion at bar on March 21, 2014. The motion requested summary judgment, or, in the alternative, summary adjudication, as to all 14 claims.
On April 24, 2014, the Court, concluding that the SAC violated the spirit and letter of the Court’s January 16, 2014, order striking the FAC and issuing specific limitations on the scope of amendment, struck the 1st, 3rd, 9th, 10th, 11th, and 14th causes of action of the SAC with prejudice as to Douglas Reed and Hale Moku, LLC, and dismissed the SAC in its entirety, without prejudice, as to Pollyanna Properties. That April 24, 2014 order has, as pointed out in the reply brief, rendered the following portions of the motion at bar moot: Issues 1, 10, 11, 14, and 15 as to Reed and Hale Moku, and all 14 issues to Pollyanna Properties.
On June 13, 2014, the Court struck Plaintiffs’ opposing separate statement of numerous reasons, but permitted Plaintiffs to file a revised one, with specific instructions/limitations as to the contents of the revised separate statement. Plaintiffs filed a revised separate statement on June 18, 2014 (“RSS”). The RSS, like the initial version of the opposing separate statement, fails to comply with CRC 3.1350 – and, more importantly, violates the Court’s specific directive that Plaintiffs withdraw from the RSS “all purported disputes of fact based on the proposition that Kinecta acquired title to the front lot only…” The Court will strike the RSS, treat the motion for summary judgment as unopposed, and grant it.
The Court’s six-page minute order of June 13, 2014 stated, in pertinent part:

“Plaintiff’s opposing separate statement fails to comply with 3.1350(f) and (h) in the most material sense. The right side of the separate statement does not “describe the evidence that supports the position that the fact is controverted” (let alone properly cite to the location of that evidence); there is no reference to evidence whatsoever on the right side of the opposing separate statement. The submission of this patently defective separate statement defeats the purpose of submitting an opposing separate statement.”

“Further, in opposing the motion, Plaintiffs’ counsel has offered argument and evidence which completely disregard the Court’s February 18, 2014 ruling expressly rejecting Plaintiffs’ assertion that Kinecta acquired title only to the front lot (APN 5560-026-018) via its deed of trust and the trustee’s deed upon sale. That issue has been already been determined by this Court adversely to Plaintiffs after full briefing, and is not up for further debate. See, February 18, 2014 Minute Order (granting Kinecta’s motion for an order expunging a deed transferring a portion of the subject property from plaintiff Hale Moku, LLC to Pollyana Properties).”

“A revised version of the opposing separate statement …which addresses only those issues which were not rendered moot by the Court’s April 24, 2014 order, which strictly complies with CRC 3.1350, which adds no new, revised, or different facts, and which withdraws all purported disputes of fact based on the proposition that Kinecta acquired title to the front lot only, is to be served by personal service, and filed directly in this department, on or before June 18, 2014” (emphases added).

“The purpose of the foregoing order is to give the Court a self-contained, entirely new opposing separate statement which complies with CRC 3.1350 and which recognizes the Court’s February 18, 2014 order – not to permit Plaintiffs to add to the previously-submitted separate statement, other than to add the missing citations to evidence. Should Plaintiffs revise their separate statement in violation of the letter or spirit of this order, the revised separate statement will almost assuredly be stricken with prejudice in its entirety, and the motion will go forward as unopposed. In other words, the Court will not permit Plaintiffs to utilize their own failure to comply with a well-known Rules of Court, and their improper assertion of ‘facts’ already rejected by the Court, to obtain an unfair advantage against Defendants” (emphasis added).

Notwithstanding the foregoing, the RSS fails to state, as to numerous material facts which are repeated throughout, “the nature of the dispute” as required by CRC 3.130(f) (see, UMFS 3, 6, 10, 14, 16, 17, 19, 26, 35, 38 and subsequent UMFs repeating the same UMF responses with different numbering). In addition, with respect to the 13th cause of action for wrongful foreclosure, the RSS omitted 35 or so of the moving facts – and Plaintiffs’ responses thereto. More importantly, even though the RSS contains numerous changes in the language of the purportedly disputed facts on the right-hand side of the page as to UMFs 3, 4, 6, 10, 11, 28, in seeking to dispute these facts Plaintiffs have maintained their argument – albeit in a roundabout, thinly-disguised way – that Kinecta acquired title to the front lot only. See also, Plaintiffs’ response to UMF 38. As seen from the afore-quoted matters above, the Court’s June 13, 201, minute order specifically warned Plaintiffs that if they maintained that argument, the Court would “almost assuredly” strike the RSS. Plaintiffs nevertheless disregarded that warning.
In the event that Plaintiffs assert that UMFs 3, 4, 6, 10, 11, 28 offer a different theory of defense than “Kinecta acquired title to the front lot only” – an assertion which would be dubious – the Court specifically ordered that the RSS present “no new, revised, or different facts.” In other words, if Plaintiffs did not improperly re-assert their argument that Kinecta acquired title to the front lot only, than they violated the Court’s June 13, 2014, order regarding the contents of the RSS in a different, yet very material, manner. To put it simply: the RSS, perhaps intentionally, makes a meaningful evaluation of the Plaintiffs’ arguments in opposition to the motion impracticable, if not impossible. The defects in the RSS are not just technical, procedural ones. Rather, they are substantive defects which materially impact the Court’s ability to determine the merits of the opposition. The Court (on its own motion, in fact) already gave Plaintiffs one chance to fix a (patently) defective separate statement. It need not, and will not, grant another opportunity. There comes a time when the Court must, regrettably, say that “enough is enough.” That time has been reached here.
The Court, on its own motion pursuant to CCP 128, CCP 436, and its June 13, 2014, minute order in this action, strikes with prejudice the RSS.
However, that does not end the analysis. As discussed below, the Court must now determine whether Defendants have met their initial moving parties’ burden under CCP 437c.

1. Evidentiary matters:
a. Almost all of the evidentiary objections made by the Defendant would be sustained (the Court has indicated on the order re: objections the rulings), however, they are moot for the aforementioned reasons; and
b. Defendants’ request for judicial notice is granted as to recordation and existence only as to exhibits 1-11 and 13. It is granted as to filing and existence only as to exhibits 14, 15, and 16. It is granted in full as to exhibits 12, 17, and 18.
2. “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit….” CCP 437c(a). “The motion for summary judgment shall 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence … and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted… on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” CCP 437c(c);
3. A defendant meets his, her, or its burden on a motion for summary judgment or summary adjudication if that party has proved that “one or more elements of the cause of action… cannot be established, or that there is a complete defense to that cause of action.” CCP 437c(p)(2);
4. The defendant need not conclusively negate an element of the plaintiff’s cause of action, but must only show that one or more of its elements cannot be established. Aguilar v. Atlantic Richfield Co. (2001) 25 C 4th 826, 853;
5. 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. CCP 437c(p)(2);
6. An opponent’s failure to oppose a motion for summary judgment or adjudication does not relieve the moving party of the need to carry his, her, or its initial moving party’s burden under CCP 437c(p);
7. The Court concludes Defendants have carried their initial moving parties’ burden as to each of the remaining claims. See, Defendants’ UMFs 1-44. In other words, Defendants have shown , via their well-drafted moving papers, that they are entitled to judgment as a matter of law on the remaining claims of Douglas Reed and Hale Moku, LLC, those being the second cause of action for violation of CC 2924.18, fourth cause of action for violation of CC 2924, fifth cause of action for violation of CC 2924(f)5, sixth cause of action for breach of contract, seventh cause of action for estoppel, eighth cause of action for breach of the implied covenant of good faith and fair dealing, twelfth cause of action for violation of B&P 17200, and thirteenth cause of action for wrongful foreclosure;
8. By not properly opposing the motion, Plaintiffs have, of course, failed to raise a triable issue of material fact. A party opposing a summary judgment motion must include a separate statement responding to each of the material facts the moving party contends to be undisputed, and identifying any other material facts the opposing party contends are disputed. See, Code Civ. Proc. Section 437c,(b)(3); Lewis v. County of Sacramento (2001) 93 CA 4th 107, 114 (“Without a separate statement of undisputed facts with references to supporting evidence … it is impossible … to demonstrate the existence of disputed facts”). Based on the Court’s order striking the RSS, Plaintiffs have not done so;
9. Defendants’ motion for summary judgment is granted. All requests for summary adjudication are denied as moot. This minute order shall serve as the Court’s order granting the motion, pursuant to CCP 437c(g). Defendants are to serve and lodge a proposed judgment of the action in its entirety on or before January 27, 2014;
10. Other matters:
a. The nature of the defects in the RSS indicate that mandatory relief is not available to remedy Plaintiffs’ counsel’s failure to comply with the Court’s June 13, 2014 (This, of course, presupposes that there could be facts properly adduced to support the RSS. The Court is unaware of such facts). See, e.g., Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 CA 4th 1, 17 (“Section 473 cannot be used to remedy attorney mistakes…”); Garcia v. Hejmadi (1997) 58 CA 4th 674, 682 (“[t]he Legislature did not intend to … provid[e] an opportunity to correct all the professional mistakes an attorney might make in the course of litigating a case”); Id. at 684 (CCP 473 provides relief for attorney error “only where the mistake is one which might ordinarily be made by a person with no special training or skill … [but] an attorney acting within his or her professional capacity is held to a different standard of care and may not be excused by section 473 from errors occurring during the discharge of strictly professional duties”);
b. Should Plaintiffs and/or their counsel bring any motion or application, however denominated, which seeks to directly or indirectly vacate or modify any ruling made today, Defendants may apply ex parte for an order shortening the CCP 128.7 safe harbor period. In this regard, any sanctions imposed on counsel (which the Court is always loath to do), under CCP 128.7 will be reported to the State Bar, as required by B&P 6089(b);
c. Defendant shall give notice of today’s rulings and timely file proof of service thereof.