Defendant's Motion for Summary Judgment
Case No.: VCU314002 Date: August 13, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Defendant's Motion for Summary Judgment Tentative Ruling: To grant the motion for summary judgment; to find the remaining issues moot.
Facts Plaintiff sues Defendant Newrez LLC dba Shellpoint Mortgage Servicing ("Shellpoint" or "Defendant") for fraud and promissory estoppel. Defendant moves for summary judgment against Plaintiff. Alternatively, Defendant seeks summary adjudication of eight separate issues. The Court, however, will focus on Issue No 1: Shellpoint is entitled to judgment because Plaintiff failed to comply with the pre-dispute notice requirement in the Deed of Trust. In support, Defendant provides a number of material facts. However, as to Issue No. 1, the Court notes the single undisputed fact that "Shellpoint did not receive any pre lawsuit notice of dispute from Plaintiff." (UMF No. 12.)
Plaintiff's Untimely Opposition and Defendant's Objections Defendant notes first that Plaintiff filed this opposition and supporting documents on July 28, 2026, approximately four days after the deadline of July 24, 2026. Under California Rule of Court, rule 3.1300(d) "No paper may be rejected for filing on the ground that it was untimely submitted for filing." The Court, in its discretion, will consider the opposition pleadings and it will analyze whether the evidence submitted establishes that Defendant is entitled to summary judgment, or adjudication, in its favor. (See Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 58 n. 2.) As to summary judgment and Issue No. 1, however, the Court finds the objections are not material to the disposition of this motion and declines to rule on these objections pursuant to Code of Civil Procedure section 473c(q).
Authority and Analysis A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. Sec. 437c(a).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
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"A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (Code Civ. Proc. Sec. 437c(f)(1).)
If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) "[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to" subdivision (t). (Code Civ. Proc. Sec. 437c(t).)
To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. Sec. 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.)
In determining whether the facts give rise to a triable issue of material fact, "[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment..." (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) "In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.)
However, if adjudication is otherwise proper the motion "may not be denied on grounds of credibility," except when a material fact is the witness's state of mind and "that fact is sought to be established solely by the [witness's] affirmation thereof." (Code Civ. Proc. Sec. 437c(e).)
Once the moving party has met their burden, the burden shifts to the opposing party "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc. Sec. 437c(p)(1).) "[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor." (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
Summary Judgment / Adjudication of Issue 1 This issue concerns the pre-dispute notice requirement contained in the deed of trust. The deed of trust states: "Neither Borrower nor Lender may commence, join, or be joined to any `judicial action (either as an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other part has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action..."
It is undisputed that Plaintiff did not provide any notice of the claims contained in Plaintiff's complaint prior to filing this lawsuit. "Under the law of contracts, parties may expressly agree that a right or duty is conditional upon the occurrence or nonoccurrence of an act or event." (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313.) "A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed." (Civil Code Sec. 1436; see Platt, supra, 6 Cal.4th at 313.) However, "[a]n express condition precedent to performance by a party cannot be construed as imposing a duty on that party to fulfill the condition, where...the language employed does not constitute an undertaking to do so." (Britschgi v. McCall (1953) 41 Cal.2d 138, 144.)
Here, the Court finds the notice provision above contains express language establishing a condition precedent and is broad enough to encompass these claims related to the deed of trust. The notice term precludes the commencement of judicial action by an individual litigant that arises from the alleged fraud and promissory estoppel related to the foreclosure of the subject property pursuant to the deed of trust "until such" notice has occurred and afforded a reasonable period to take corrective action. No such notice has been provided. Therefore, the Court finds Defendant has met its burden on summary judgment that notice of these claims were a condition precedent to filing this lawsuit.
The Court, therefore, turns to Plaintiff's opposition as to Plaintiff's burden on this issue. The Court first notes that "The nonoccurrence of a condition precedent may be excused for a number of legally recognized reasons. But when a party has failed to fulfill a condition that was within its power to perform, it is not an excuse that the party did not thereby intend to surrender any rights under the agreement." (Platt, supra, 6 Cal.4th at 314.)
Here, the Court has not been presented in the opposition with any "legally recognized reasons" why the prelawsuit notice term either is not a condition precedent or is subject to some legal excuse as to the undisputed noncompliance. In the absence of any such evidence or argument, the Court grants summary judgment based upon the arguments made under the first issue. This ruling is dispositive of both causes of action and renders the remaining issues moot.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Steverson, Sherkeil vs. The Save Mart Companies