18-CLJ-02567 UNIFUND CCR, LLC VS. JASMIN NEVAREZ, ET AL.

UNIFUND CCR, LLC JASMIN NEVAREZ
JOHN P. KENOSIAN PRO/PER

MOTION FOR SUMMARY JUDGMENT BY UNIFUND CCR, LLC TENTATIVE RULING:

The Motion of Plaintiff Unifund CCR, LLC (“Plaintiff”), for Summary Judgment, is DENIED.

First, Plaintiff failed to comply with the requirement to provide a separate statement in support of its motion. (See Code of Civ. Proc. § 437(b)(1).) (C.C.P. § 437c(b)(1); see United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 [“the prevailing view is that it is only in the truly exceptional case involving a single, simple issue with minimal evidentiary support that a court will consider the merits of a motion unaccompanied by a separate statement”].) The Complaint alleges three causes of action to which Plaintiff is seeking summary judgment. Plaintiff’s Memorandum of Points and Authorities discusses the elements of each cause of action, but then fails to cite to specific evidence in support of each element. Accordingly, the court finds failure to provide a separate statement constitutes grounds for denying the motion here.

Second, even if the court were to consider the merits of Plaintiff’s Motion for Summary Judgment, Plaintiff has not met its burden of presenting evidence to establishing all the elements of the breach of contract claim. The elements of a breach of contract claim are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to plaintiff. (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.app.4th 1602, 1614.) The court previously denied Plaintiff’s Motion for Judgment on the Pleadings to the Complaint, in part, because while Defendant Jasmin Nevarez’s (“Defendant”) responses to Plaintiff’s Request for Admissions admit some facts, they do not admit each of the allegations essential to a cause of action for breach of contract, such as the terms of the contract or performance of the agreement by Plaintiff/Citibank. (See September 20, 2018 Minute Order.)

In this current motion, Plaintiff still has not presented evidence to establish each element of the breach of contract claim. In addition to once again relying on the Request for Admissions and Defendant’s Responses to the Request for Admissions, Plaintiff’s counsel submits his own declaration, and asks that the court take judicial notice of the Citibank cardholder agreement. (See Kenosian Decl. ¶ 5.) Mr. Kenosian claims that the original contract is sent to the cardholder, the contract is not signed by either party, and the contract provides for attorney’s fees and costs to the prevailing party. (Id.) However, Mr. Kenosian’s declaration lacks personal knowledge of the contract, as he is the attorney for Plaintiff, who is the assignee of Citibank. (See Maltby v. Shook (1955) 131 Cal.App.2d 349, 351-352.) The purported contract was entered into between Citibank and Defendant, but Mr. Kenosian’s declaration is not admissible evidence of a contract between Citibank and Defendant. Moreover, the Citibank cardholder agreement, of which Plaintiff requests judicial notice, is not the proper subject of a request for judicial notice.

Third, Plaintiff also appears to move in the alternative for summary adjudication. The caption of Plaintiff’s Notice of Motion though, fails to state that Plaintiff is seeking summary adjudication. Additionally, while the body of the Notice of Motion indicates that Plaintiff is seeking summary adjudication, Plaintiff states only that it moves for “a summary adjudication of issues under the provisions of Code of Civil Procedure § 473c.” (See Plaintiff’s Notice of Motion.) Such notice is deficient as the specific cause of action, affirmative defense, claims for damages, or issues of duty, must be stated specifically in the notice of motion, which Plaintiff failed to do. (See Cal. Rules of Court Rule 3.1350(b).) Moreover, the correct authority is Code of Civil Procedure 437c, not 473c. Accordingly, Plaintiff’s Motion for Summary Adjudication is also DENIED.

Lastly, Plaintiff’s Request for Judicial Notice of the Complaint, Answer, Plaintiff’s Requests for Admission, and Defendant’s Responses to Requests for Admission, is GRANTED. Plaintiff’s Request for Judicial Notice of the Citibank, NA cardholder agreement is DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.