Case Number: BC499790 Hearing Date: May 05, 2014 Dept: 32

CASE NAME: Joseph Turner v. J. Richard Moody
CASE NO.: BC499790
HEARING DATE: May 5, 2014
DEPARTMENT: 32
CALENDAR NO.: 4
TRIAL DATE: 7/8/14
NOTICE: OK
SUBJECT: Motion for Summary Adjudication
MOVING PARTY: Plaintiff Joseph Turner as Trustee of the Arnold Friedman Trust
RESP. PARTY: None

TENTATIVE RULING

Motion for Summary Adjudication:

First Cause of Action (Breach of Contract of the 2004 Loan) GRANTED.

Second Cause of Action (Breach of Contract of the 2007 Loan) GRANTED.

Third Cause of Action (Breach of Contract of the Mortgage Payment Agreement) GRANTED.

Sixth Cause of Action (Account Stated) GRANTED.

ANALYSIS

Motion for Summary Adjudication

A 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 judgment as a matter of law. (CCP § 437c(c).) There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) On its motion for summary judgment, the plaintiff maintains the burden that each of the elements has been proved and that there is no defense available, while on its motion the defendant must persuade the court that one of the elements in question cannot be established or that there is a complete defense. (Id.) Summary judgment motions are defined by the material allegations in the pleadings. (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) A motion for summary adjudication proceeds in all procedural aspects as a motion for summary judgment. (CCP § 437c(f)(2).)

Plaintiff moves for summary adjudication of the first, second, third, and sixth causes of action.

Issue #1: First Cause of Action for Breach of Contract of the 2004 Loan

The elements for a breach of contract cause of action are: (1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)

Plaintiff submits evidence that on March 1, 2004, Defendant and Mr. Friedman entered into a valid written contract in which Friedman loaned Defendant the principal sum of $93,500 in consideration of which Defendant executed a deed of trust on the Long Beach property. (UMF 13; Swensson Declaration, Exh. A, Defendant’s Responses to RFAs Nos. 1, 2.) Defendant admits that after the final extension of the 2004 Loan was given, the principal of the loan was increased to $90,000 which was due on December 31, 2012 and that he has not paid any portion of the $90,000 outstanding balance. (UMF 20, 21, 22; Swensson Declaration, Exh. A, Defendant’s Responses to RFAs Nos. 13, 15-16.) Upon his death, Friedman’s last will and testament transferred all of this estate to the Arnold Friedman Trust.
On November 25, 2013, this Court heard a similar MSA filed by Plaintiff Joseph Turner. The Court denied the motion without prejudice and noted the following defects: (1) there was no trust document as part of Exhibit “A”, (2) a copy of the will had not been submitted to the Court, (3) there was no statement from the successor in interest, and (4) the declaration of Joseph Turner regarding secondary evidence was incompetent.
In the amended MSA, Plaintiff provides his competent declaration in which he declares that he is the original settler and trustee of the Arnold Friedman Trust. (Turner Declaration, ¶1). Plaintiff declares that on July 27, 2012, his father executed the Last Will and Testament of Arnold Friedman which provided that upon his death, his father’s entire estate would pour over into the trust. (Turner Declaration, Exhibit A). The Trust was also executed that same day which empowered the joint Trustees, i.e., Plaintiff and Paula Schmotzer, to commence litigation with respect to the trust estate at the expense of the trust. (Turner Declaration, ¶4, Exhibit B, Page 12). Plaintiff provides evidence that Ms. Schmotzer resigned as a co-trustee, such that Plaintiff is the sole Trustee. (Turner Declaration, ¶4, Exhibit D).
Based on this evidence, Plaintiff has shown the existence of a contract, Plaintiff’s performance, Defendant’s breach, and damages in the amount of $90,000. Further, Plaintiff has remedied the defects noted by the Court. He has submitted the trust, and the will, and has declared that he is the sole successor in interest.

No opposition has been received from Defendant to submit evidence of a triable issue on this cause of action.

Accordingly, the MSA is GRANTED as to the first cause of action.

Issue #2: Second Cause of Action for Breach of Contract of the 2007 Loan

In support of the second cause of action, Plaintiff submits evidence that on August 15, 2007, Defendant and Mr. Friedman executed an Adjustable Rate Mortgage Note pursuant to which Mr. Friedman loaned Defendant $331,500. (UMF 32; Swensson Declaration, Exhibit A: Response to RFA No. 17.) Following the 2007 Loan Modification, the new due date for the loan was November 22, 2012 and the principal was increased from $331,500 to $354,000. (UMF 36, 37; Swensson Declaration, Exhibit A: Responses to RFAs Nos. 23-24.) Defendant did not pay the 2007 Loan by November 22, 2012 and has not paid any portion of the $354,000 principal on the 2007 Loan and is therefore in default. (UMF 38; Swensson Declaration, Exhibit A: Response to RFA No. 26.) Plaintiff was harmed in the amount of $354,000 plus interest by this default. (UMF 38; Swensson Declaration, Exhibit A: RFA No. 26.)

Based on this evidence, Plaintiff has shown the existence of a contract, Plaintiff’s performance, Defendant’s breach, and damages in the amount of $354,000. No opposition has been received from Defendant to submit evidence of a triable issue on this cause of action. As analyzed above, Plaintiff has fixed the defects that the Court noted previously.

Accordingly, the MSA is GRANTED as to the second cause of action.
Issue #3: Third Cause of Action for Breach of Contract of the Mortgage Payment Agreement

In support of the third cause of action, Plaintiff submits evidence that, as consideration for the 2007 Loan, Defendant agreed to make “interest only” payments of Friedman’s mortgage pursuant to the terms of the Mortgage Payment Agreement. (UMF 48; Response to RFAs No. 27.) Plaintiff declares that he did not learn about the loans until shortly before his father’s death and his father told him that he was upset and ashamed he had over-leveraged himself to loan the money to Moody. (Turner Declaration, ¶6). Plaintiff declares he was advised by the lender on his father’s home that Defendant had stopped making payments on the mortgage and he thus had no choice but to negotiate with the bank to short sell the property. (Turner Declaration, ¶8). Defendant admits that he stopped making payments on this agreement and that the debt on the Mortgage Payment Agreement was $20,646 as of November 2012. (UMF 50; Response to RFAs No. 30.)

Based on this evidence, Plaintiff has shown the existence of a contract, Plaintiff’s performance, Defendant’s breach, and damages in the amount of $20,646. No opposition has been received from Defendant to submit evidence of a triable issue on this cause of action. As analyzed above, Plaintiff has fixed the defects that the Court noted previously.

Accordingly, the MSA is GRANTED as to the third cause of action.

Issue #4: Sixth Cause of Action for Account Stated

“The writing constituting an account stated need not aver or at all contain the grounds and reasons for the conclusion and declaration expressed. It is a complete account stated if it contains a signed and written acknowledgment of a present, unqualified indebtedness or liability with a promise to pay a named sum.” (Gardner v. Watson (1915) 170 Cal. 570, 574-75.)

Plaintiff submits evidence that Defendant admitted, in response to a letter sent by Plaintiff’s attorney, that Defendant owed $20,646 on the Mortgage Payment Agreement. (UMF 49; Duncan Decl. Exh. A-B.) Based on this evidence, Plaintiff has shown that an account was stated in the amount of $20,646. No opposition has been received from Defendant to submit evidence of a triable issue on this cause of action.

Accordingly, the MSA is GRANTED as to the sixth cause of action.

Plaintiff has not moved for summary adjudication on the Fourth or Fifth causes of action or indicated whether he is pursuing these causes of action. If those causes of action are to be dismissed, Plaintiff must submit a proposed form of judgment consistent with the amounts requested in the motion for summary adjudication. To the extent Plaintiff is seeking pre-judgment interest on any of the sums to which the motion is addressed, Plaintiff must demonstrate to the Court that he has submitted admissible undisputed evidence on the amount of interest or method of calculation of interest such that Defendant would have been on notice that this interest amount was requested.