Motion for Summary Adjudication
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Jon Franke v. Renee Tobias, 21CV-0661
Hearing: Motion for Summary Adjudication
Date: June 17, 2026
Jon Franke (Franke) filed this action against Renee Tobias (Tobias) on November 30, 2021. Tobias filed a cross-complaint against Franke in July 2022. The dispute concerns real property located at 118 Clydell Court in Pismo Beach (the Property). In March 2023, the Court granted summary adjudication of Franke’s partition claim. A year later, the Court confirmed the real property sale proposed by the referee. On July 11, 2024, the Court approved the referee’s final account, awarded referee fees, imposed deductions against Tobias’ share of the sale proceeds, ordered the entire balance of the sale proceeds distributed to Franke, and discharged the referee. There remain pending contractual and accounting claims.
Currently on calendar is Franke’s motion for summary adjudication of his breach of contract claim. No opposition has been filed.1 The motion is granted.
A.
Legal Standard
Summary judgment is proper when there are no triable issues of material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In ruling on a motion for summary judgment, the court must view the evidence, and the inferences reasonably drawn therefrom, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
When a plaintiff moves for summary judgment, the plaintiff has the initial burden to produce admissible evidence on each element of each cause of action entitling him or her to judgment. (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff makes a prima facie showing, then the burden shifts to the defendant to show the existence of a triable issue of material fact as to the cause of action or a defense thereto. (Ibid.)
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B. Discussion
“The elements of a breach of contract claim are: ‘(1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.’ [Citation.]” (Naranjo v. Doctors Medical Center of Modesto, Inc. (2025) 111 Cal.App.5th 408, 430.)
1 In 2024, Tobias stopped including a mailing address on her filings. Prior to that, she had used the Property’s address as her address of record. Tobias has not filed a Change of Address form. The Court, therefore, approves electronic service on her at the email address provided on her filings because that is the last information she has provided for communications and service. (See e.g., Reply to Referee’s Report filed on 04/22/24; Notice of Change of Venue filed 09/10/25.) 1
On May 27, 2020, the parties entered into an Agreement Among Co-Owners. The Agreement provides, among other things, that Plaintiff (who owned a 100% interest in the Property as an unmarried man) would convey a 10% interest in the Property to Tobias and “jointly work together to maintain the property, support, marketing activity of the home and to move from the property prior to June 8, 2020 ....” (Franke Decl., ¶¶ 4, 7, Exs. 1 [07/11/17 Grant Deed], 2 [Agt., §§ 2.1, 3.2].). Franke complied with his obligations and transferred a 10% interest in the Property to Tobias on June 1, 2020. (Franke Decl., ¶ 7, Ex. 3.)
In August 2021, the parties executed an amendment to the Agreement confirming their ownership percentages. (Franke Decl., Ex. 4.) The purpose of the amendment was to advance monies to Tobias as part of a separate action in Canada. (Franke Decl., ¶¶ 13-15, Ex. 4.) If that court found Tobias was not entitled to that sum, then it would be reimbursed via the sale of the Property. (See Ex. 13 [Order on Referee’s Final Account and Report, ¶ 13.e. (reimbursement)].)
In the interim, sale of the Property had been delayed due to an encroaching retaining wall and the expiration of the listing agreement. (Franke Decl., ¶¶ 8, 11.) However, after that issue was resolved, Tobias refused to execute an extension of the listing agreement, refused to cooperate in the marketing and sale of the Property, and had moved back into the Property requiring the appointed referee to pursue a writ of possession. (Franke Decl., ¶¶ 8, 10, 11, 18, Ex. 14; see also Order After Hearing 12/21/23.)
As for damages, Franke agrees to limit damages “to the previously determined expenses” which were part of the Court’s ruling on the partition action. (Mtn., p. 2, l. 6; Franke Decl., Ex. 13.) Specifically, Franke seeks the following damages: (1) $3,930.28 (utility expenses during Tobias’ unauthorized occupancy); (2) $70,794.00 (other damages caused by Tobias’ unauthorized occupancy); and (3) $30,676.51 (referee fees and costs arising out of the need to file a partition action). (Mtn., p. 10, ll. 15-17 [waiving other costs such as additional taxes, legal expenses and insurance caused by the delay in sale].)
Franke has submitted admissible evidence on each element of his breach of contract claim meeting his prima facie burden. Plaintiff has failed to submit evidence raising a triable issue of material fact.
ORDER
The Motion for Summary Adjudication is granted. The Court awards damages in the amount of $105,400.79 as a result of Tobias’ breach of the Agreement Among Co-Owners.
The Court grants Franke’s requests for judicial notice. (Evid. Code, § 452(c), (d).)
2