17-CIV-03086 REBECCA SNELL VS. PATRICIA FRANCO-BROWN, ET AL.

REBECCA SNELL PATRICIA FRANCO-BROWN
PATRICK BALDWIN TIMOTHY G. MCFARLIN

PLAINTIFF AND CROSS—DEFENDANT REBECCA SNELL’S MOTION FOR SUMMARY ADJUDICATION FOR PLAINTIFF’S THIRD CAUSE OF ACTION — BREACH OF CONTRACT TENTATIVE RULING:

Plaintiff’s motion for summary adjudication of its breach of contract cause of action is denied.

Plaintiff’s moving papers meet the initial burden of establishing a prima facie case for breach of contract. (Code of Civ. Proc. Sect 437c, subd. (p) (1) (plaintiff’s moving burden is to establish elements of cause of action).) Plaintiff’s moving papers establish that the parties entered into an agreement for a $1.0 million loan, that Plaintiff lent the money, and Defendants did not repay the money by the due date. A. A Triable Issue of Fact Exists About the Manner of Repayment.

The Complaint does not allege the manner in which Defendants were to repay the loan. Defendants, however, offer evidence of a contract term that “The Loan was to be paid back . . . using the proceeds from the sale of the gold bars, which Ms. Snell agreed to help sell through her contacts, including the ‘Gold Guy.’ . . . Ms. Brown and I entrusted the entire lot of forty-nine (49) gold bars, . . . to Ms. Snell, to keep in her possession, custody and control, until such time as the gold could be sold and the Loan repaid.” (Decl. of Brown para. 6.)

Defendants contend that one term of the agreement was that the loan was to be repaid by selling the gold and using the proceeds to repay Plaintiff. By omitting this manner of repayment from her moving papers, Plaintiff implicitly denies that parties agreed that repayment would come from sale of the gold. Therefore, a triable issue of fact exists about whether the agreement included a material term that Defendants’ repayment was to come from sale of the gold. A reasonable jury could conclude that the parties intended that the gold would be sold in order to repay Plaintiff, in which case the jury could find that Defendants did not breach the agreement.

B. A Triable Issue Exists About Whether Defendants Were a Cause of Plaintiff’s Damage.

Plaintiff alleges that the unsigned written document reflects the terms of the loan. (2nd Am. Complaint para. 13.) The document contains a provision that “Right of Offset: If this loan becomes past due, the Lender will have the right to pay this loan from any deposit or security Borrower has with this Lender . . . .” (Agreement para. 10 (Exhibit A to 2nd Am. Complaint.)

Plaintiff could have avoided, or at least mitigated, any damages by selling the gold to satisfy repayment. The gold’s disappearance denied Plaintiff of that remedy. The evidence shows that the alarm sounded at a time when Defendants were in Palm Springs. (Decl. of Brown para. 10.) Plaintiff informed Defendants that, at that time, Plaintiff was at a neighbor’s house, and her son was home. (Id. para. 11.) It is unknown how the gold disappeared, but the evidence shows that Defendants likely were not the cause.

The disappearance of the gold prevented Plaintiff from being made whole, and there is no evidence suggesting that Defendants caused the disappearance. Therefore, triable question of fact exists about whether (1) Plaintiff’s damages were caused by Defendants’ nonpayment or by the loss of the gold, which had been in Plaintiff’s exclusive possession and control at all times, and (2) whether Plaintiff failed to mitigate her damages. (See Answer, 15th Affirmative Defense.)

C. Objections.

The Court sustains Plaintiff’s objections for lack of foundation only as to the following portions:

Objections 1 & 6. “and was well known as being a lender within the community.”

Objections 2 & 7. “Using the gold bars as collateral appeared to be particularly attractive to Ms. Snell because”

Objections 3 & 8. “a fact which Ms. Snell was well aware of.”

The Court overrules Objections 4, 5, 9, and 10.

The Court overrules Objections 11 and 12, which are to Defendants’ responses to material facts, but not as to any evidence. (See Code of Civ. Proc. Sect. 437c, subd. (q) (Objections must be to evidence).)

D. Ruling

Plaintiff’s motion for summary adjudication is denied.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.