SHELLEY JENSEN vs BARRY STERN

SHELLEY JENSEN vs BARRY STERN

Tuesday – August 18, 2026 Dept. 42 Motions: 1) Defendant Barry Stern’s Motion for Summary Judgment 2) Plaintiff Shelley Jensen’s Motion for Summary Adjudication on Issues of Duty Tentative:1) The Court intends to DENY Defendant Barry Stern’s Motion for Summary Judgment on grounds that moving-party failed to comply with California Rules of Court, rule 3.1350. Even ignoring the procedural missteps, Defendant failed to meet his initial burden, demonstrating that any element of the unidentified causes of action at issue cannot be established.

Stern fails to show that Jensen will not be able to establish that Stern assumed the obligations alleged, breached enforceable obligations, or caused damages. The admissible evidence presented to the Court creates a triable issue of material fact, at the very least. 2) The Court intends to DENY Plaintiff Shelley Jensen’s Motion for Summary Adjudication on Issues of Duty. The Court finds that Jensen has not carried his burden of establishing that the four contractual duties identified in the Motion may be adjudicated as a matter of law because the evidence presents genuine disputes regarding whether those provisions continued to govern the parties’ relationship under the changed circumstances and course of conduct, in particular events post-2013.

Because competing reasonable inferences may be drawn from the evidence regarding the continuing scope and enforceability of the contractual provisions at issue, summary adjudication is improper.

Defendant Barry Stern’s Motion for Summary Judgment First, regarding Stern’s proposed UMFs, The Court would overrule the objections contained in Jensen’s “response” to the Separate Statement, and find that (for purposes of this motion only) nos. 1-20 are established as stated except as noted below. Although Plaintiff Jensen is correct that certain UMFs are not supported by the evidence cited at the precise location noted, there is no dispute that the fact is true and accurately stated; e.g, nos 6, 10-11. UMF no. 13 is not established as to the method of delivery of the January 5, 2021 communication, but this element of the UMF is immaterial.

Second, Stern fails to respond to Plaintiff’s 54 proposed Additional Material Facts (“AUMFs”) and the court would find them, for purposes of this Motion only, undisputed and established. Next, the caption of Stern’s Notice states that it is a Motion for Summary Judgment only - there is no mention of an alternative request for summary adjudication in the caption itself. However, the body of the Notice does clearly indicate that “[i]n the alternative, Stern moves for summary adjudication of the following [seven] issues: .” Notably though, the proposed order “Granting in Part Defendant Barry Stern’s Motion for Summary Adjudication” only lists five issues [a.-e.], and the issues listed in the proposed order are not phrased identically to those listed in the Notice.

Compounding this defect is the fact that Stern’s Separate Statement fails to list the issues verbatim, in violation of California Rules of Court, rule 3.1350, subds. (b)(d)(1). Also, neither the Notice nor the Motion or Separate Statement make any attempt to connect the issues to any particular cause of action in the First Amended Complaint; i.e., breach of written agreement, declaratory

relief, or breach of fiduciary duty. In short, the Motion is fairly confusing and not well organized. While moving-party Stern argues that the procedural missteps were not prejudicial and that opposing party Plaintiff clearly understood the issues, the opposition separate statement includes six issues, while the opposition memo discusses seven. The Court could DENY the Motion on grounds that Stern failed to comply with Rule 3.1350. Even if the Court were to ignore the procedural violations, clearly summary judgment is not appropriate here.

Stern failed to outline any of the elements of Jensen’s causes of action, or even name them, and has not established that he is entitled to judgment on the entire FAC as a matter of law. The tentative is to DENY the request for summary judgment. As for the requests for summary adjudication of issues, the fact that Stern was not a named mortgagor, purchaser or borrower does not foreclose liability under the causes of action alleged against him. As alleged, liability is not based on the notes and loan documents directly, but through the partnership agreement the parties admit to entering into in 2007.

That said, adjudication of the first two issues would be inappropriate as phrased because Stern’s legal duty may in fact “aris[e] out of the mortgage loans.” While a party cannot be liable for a contract they did not agree to be bound by, Plaintiff’s allegation is that Stern did agree to be bound by the 2007 partnership agreement, and that the agreement requires cost-sharing of the investment in the two Lots; meaning they obligation arose out of the mortgage loans at issue in this action. The parties’ disagreement about the precise scope of the terms of the agreement is not susceptible to resolution as a matter of law under the facts presented here.

The fact that the underlying agreement does not contain a provision about capital contributions of capital calls, does not necessarily impact the scope of the duties/obligations owed by the members; i.e., to share investment costs by making monthly payments. Likewise, whether the limited partnership legal entity was ever properly formed does not necessarily bar Plaintiff’s causes of action; there is no showing that Stern’s duties/obligations were dependent on such formation. Questions about the materiality of this term will not be decided now.

Defendant failed to meet his initial burden, demonstrating that any element of the unidentified causes of action at issue cannot be established. Stern fails to show that Jensen will not be able to establish that Stern assumed the obligations alleged, breached enforceable obligations, or caused damages. The tentative is to DENY. At the very least, the admissible evidence presented to the Court creates a triable issue of material fact. None of the five or seven issues articulated by Stern are appropriately adjudicated based on this Motion.

The parties’ course of conduct is relevant to the determination of what contractual duties may exist here. While interest-only payments on the two Lots ended in about August 2013, Stern’s own evidence shows that he continued to make monthly “cost-sharing” payments through 2020. UMF no.

12. The decision to stop making payments on the Lots in 2013, seemingly lead directly to litigation and the need for continued cost-sharing, which Stern indisputably did for nearly 6.5 year after August 2013. As Plaintiff’s evidence indicates, Stern performed under the agreement for nearly 14 years without objection, until January 2021. The fact that Stern in fact reimbursed Jensen for legal fees and other liabilities, without complaint, for years would seem to be clear objective evidence of the nature and scope of his obligation.

There is no evidence that any of the agreement’s express terms would bar Plaintiff’s theory of liability. Stern offers no contractual language on that point. The issue of whether there was a continuing obligation under the partnership agreement, and whether Stern was required to reimburse legal fees, settlement, or other costs cannot be determined as a matter of law based on the facts before the Court. The existence, and certainly the scope of, Stern’s obligations are disputed. The parties’ course of

conduct may be considered when the trier of fact determines that the parties intended. The question of whether these “later payments by Stern reflected voluntary accommodation” or an enforceable legal obligation will not be improperly decided now. DENY. Plaintiff Jensen’s Motion for Summary Adjudication - Issues of Duty The Court declines to rule on Stern’s objections to the evidence submitted by Jensen because he failed to comply with the required format outlined in California Rules of Court, rule 3.1354(b)- (c). Stern fails to quote or set forth the objectionable statement or material, subd. (b), and did not submit the required proposed order, subd. (c).

The Court also declines to rule on Jensen’s objections to Stern’s declaration. Jensen failed to make the objections separately, and also failed to provide a proposed order in compliance with CRC, rule 3.1354. Next, regarding Jensen’s proposed UMFs, the court would find that (for purposes of this motion only) nos. 1-17 are established as stated.

While Plaintiff is clear that she is not asking the Court to decide whether Stern breached the Agreement, what amount is owed, or whether Stern has affirmative defenses, the reason the Motion fails is because it is a disputed fact whether the obligations still exist. That is disputed. So, although there is no dispute as to what the Agreement’s language is, Stern argues changed circumstances and points to the parties course of conduct. The credibility and weight of reasonable competing inferences arising from the admissible extrinsic evidence cannot be decided as a matter of law.

This is not even a matter of contract interpretation – Stern does not argue a contrary understanding of the clauses at issue – instead Stern seems to argue that the provisions are no longer enforceable against him based on the changed circumstances and course of conduct. Supported by declaration of Stern. Stern does not dispute what the Agreement states, or that the obligations existed from 2007 through 2013. Instead, he states that the 14-years of changed circumstances, and the parties course of conduct, altered the obligations.

Specifically, he points to the failure of the development, the fact that the limited partnership entity was not formed, the redistribution of investor interests were redistributed, and the 2013 decision to discontinue mortgage payments. Those actions, Stern argues, materially changed the operation of the investment from active to inactive, and changed the obligations owed. What duties remained as of January 2021? The evidence presents triable issues of material fact on the issues, such that summary adjudication of the issues as phrased would not be appropriate – the parties dispute the continuing scope and enforceability of the contractual provisions outlined in issues 1-4.

For example, the Court cannot adjudicate that the Agreement currently requires Stern to make timely monthly payments, and there is no agreement regarding what is included in the “share of investment costs” in any event. See Issue no.

1. Stern offers that the change in circumstances and the parties’ course of conduct altered the obligation to make monthly payment. Jensen asserts that the costs include attorney’s fees, settlement payments, judgments, and other liabilities but the UMFs don’t support that claim. What constituted “investment costs” was not established. Next, the Court cannot find that Stern is required to remain in the group until the group decides to sell, profits or losses are split, and funds are dispersed, because there are alternative ways to leave the group; see Issue no. 3 providing a process for sale of investment interest. Moreover, as above, what is properly included in the

“monthly payments” is subject of dispute and the abiding enforceability of this provision is contested with sufficient evidence. The same reasons prevent the Court from adjudicating Issues 3 and 4. Plaintiff has failed to establish the scope and continuing enforceability of the Agreement’s contractual obligations. Jensen argues that Stern has the burden to establish his defense that the obligations in the 2007 Agreement somehow became unenforceable at some unidentified point in time after the Agreement was executed, but that is not the correct standard on Jensen’s Motion.

In sum, the Court’s tentative is to DENY Plaintiff Shelley Jensen’s Motion for Summary Adjudication on Issues of Duty. Jensen has not carried his burden of establishing that the four contractual duties identified in the Motion may be adjudicated as a matter of law because the evidence presents genuine disputes regarding whether those provisions continued to govern the parties’ relationship under the changed circumstances and course of conduct, in particular events post-2013. Because competing reasonable inferences may be drawn from the evidence regarding the continuing scope and enforceability of the contractual provisions at issue, summary adjudication is improper.