Motion for Summary Judgment and/or SAI

Tentative Ruling: Motion for Summary Judgment is DENIED. Motion for Summary Adjudication is DENIED.

MPs failed to comply with CRC, Rule 3.1350(b), and therefore the Court treats this motion as one for summary judgment only, where a single disputed material fact may create a triable issue. Here, facts nos. 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 23, 24, 26, 27, 28, 2931, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 52, 52(a), 52(b) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 71, 72, 74, 75, 76, 78, 79, 80, 83, 84, 85, 87, 88, 89, 90, 91, 93, 95, 97, 99, 101, 103, 105, 107, 109, 109(a), 109(b), 110, 111, 113, 114,115, 116, 117, 118, 120, 121 are in dispute, in addition to Plaintiffs opposing undisputed material facts Nos. 122-176.

The Court notes there are triable issues of material facts as to (1) whether or not there was a meeting of minds as to the initial Deed Agreement; (2) whether the Agreement for Deed was superseded by the Lease, Option and Purchase Agreement; and (3) whether the conduct of defendants was sufficiently outrageous to constitute intentional infliction of emotional distress etc.

In making its determination the Court relied on all admissible evidence, particularly the two “Agreement for Deeds” found in Defendant’s Compendium of Exhibits, Exh. B; Conrado Deposition, p. 46:8-20;; Conrado Declaration ¶¶8, 27-34.

Preliminarily, the Court notes MPs failed to comply with CRC, Rule 3.1350(b):

If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

Here, the notice of motion states, defendants seek summary judgment “or, in the alternative, for an order granting summary adjudication of issues as indicated below…” Below, MPs list the 11 causes of action. However, the Separate Statement only mentions 4 issues. Clearly the issues to be adjudicated have not been set forth verbatim from the Notice of Motion.

To that end, the motion is treated as one for summary judgment only, where a single disputed material fact may create a triable issue. The Court notes failure to comply with the separate statement requirement constitutes ground for denial of the motion, in the court’s discretion. (Code Civ. Proc.,§437c(b)(1).) Here, facts nos. 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 23, 24, 26, 27, 28, 2931, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 52, 52(a), 52(b) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 71, 72, 74, 75, 76, 78, 79, 80, 83, 84, 85, 87, 88, 89, 90, 91, 93, 95, 97, 99, 101, 103, 105, 107, 109, 109(a), 109(b), 110, 111, 113, 114,115, 116, 117, 118, 120, 121 are in dispute in addition to Plaintiffs opposing undisputed material facts Nos. 122-176.

There are triable issues of material facts as to (1) whether or not there was a meeting of minds as to the initial Deed Agreement.

Contract formation requires mutual consent, which cannot exist unless the parties “agree upon the same thing in the same sense.” (Civ.Code, § 1580; see also §§ 1550, 1565.) “If there is no evidence establishing a manifestation of assent to the ‘same thing’ by both parties, then there is no mutual consent to contract and no contract formation.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811, 71 Cal.Rptr.2d 265.) “Mutual consent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.” (Alexander v.Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141, 127 Cal.Rptr.2d 145; see also Meyer v. Benko (1976) 55 Cal.App.3d 937, 942–943, 127 Cal.Rptr. 846 [existence of mutual consent “is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe”].)

Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed. But if the material facts are certain or undisputed, the existence of a contract is a question for the court to decide. (Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407, 110 Cal.Rptr. 675.)

(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208.) Here, the evidence is certainly in conflict. Defendants argue there is no meeting of minds because there was no finalization of term relating to interest.

Mutuality of consent. Consent is not mutual, unless the parties all agree upon the same thing in the same sense. But in certain cases defined by the Chapter on Interpretation, they are to be deemed so to agree without regard to the fact.

(Civ. Code, § 1580.) It is clear from the two “Agreement for Deeds” that the parties originally intended for the interest rate to increase from 4.5 percent the 1st year to 5 percent after the fifth year. (See Defendant’s Compendium of Exhibits, Exh. B.) Although one space is left blank in terms of interest, the other clearly says “see abv” which refers to the percentages set forth on both documents. A reasonable person would conclude the parties intended for the interest rate to increase after the first year as described in the document.

Conrado testified that (although he filled out the documents), “we did not discuss in detail what those numbers are. It’s just we have a budget to go in this house. We said that we can afford $2,000 every month. And that $2,000 representing, I estimated, if I pay 300 for insurance, and $100 for taxes every month, about the monthly payment directly to the house about 1600, and it represented to about 4 ½ percent of the 425,000. So that’s how we came up with this progressive increasing interest, so that to make it fair for her for carrying the financing.” (See Plaintiff’s Compendium of Exhibits, Exh. 20, Conrado Depo p. 46:8-20.) This corroborates what Ms. Sanderson believed, that there would be a “variable rate of interest” on any financing by her.

Defendant argues there was no meeting of the minds because Plaintiffs claim there was a “zero percent interest loan” and Defendant Sanderson believed the interest rate was supposed to be a reasonable rate of interest. Any suggestion by Mr. Ong, who apparently filled out the Agreement for Deed and the percentage rates, that there was a zero percent interest rate, seems to lack credibility—again, because he filled out the Agreement. His Declaration merely states, “My initial inspection prior to entering into the Deed Agreement/OMD with Ms. Sanderson led me to believe the value of the house no more than $380,000 with the inclusion of the improvements I intended to make and at the time the difference of $45,000 was the amount of interest imputed into the deal over time.” (Conrado decl¶8.)

However, this seems to contradict his own deposition testimony as noted above. All in all, it appears there was a meeting of the minds regarding interest and only later did the Ongs create this “zero percent interest” term. That is Defendant’s lack of mutual consent argument fails, and/or there are sufficient triable issues of material fact on the issue.

There are also triable issues of material fact as to (2) whether the Agreement for Deed was superseded by the Lease, Option and Purchase Agreements. It is clear these documents were meant to supersede the Agreement for Deed and did so. Curiously the FAC does not really mention these documents. However, there is a triable issue of material fact as to whether those agreements ware void or voidable.

The doctrine of “economic duress” can apply when one party has done a wrongful act which is sufficiently coercive to cause a reasonably prudent person, faced with no reasonable alternative, to agree to an unfavorable contract. (Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154, 1158 [204 Cal.Rptr. 86].) The party subjected to the coercive act, and having no reasonable alternative, can then plead “economic duress” to avoid the contract.

(CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 644.)

The Declaration of Conrado Ong establishes his family was fearful of being homeless, could not afford a lawyer, had already expended a lot of time and money on the home, and was intimidated by Mr. Allred. He essentially establishes he and his wife had no reasonable alternative but to sign the new agreements. (See Declaration of Conrado Ong ¶¶27-34.)

Finally, there are triable issues of material fact as to whether or not the conduct of defendants resulted in NIED or IIED. A jury could determine that forcing a buyer to give up the keys after purchasing a home, and forcing the buyers to enter into a Lease instead, only after the buyer has expended time and money to improve the property, is sufficiently outrageous.

OBJECTIONS: Declaration of Vivian Sanderson: Sustain Nos. 4, 5, 10, 13, 16 Overrule: 1-3, 6-9, 11-12, 14-15, 17-23

Declaration of Craig Allred: Sustain: 1, 2, 8, `14-17, 24, 30 Overrule: 3-7, 9-13, 18-23, 25-29, 31-46, 48-52