William Brooks, et.al. vs. Cheryl Boomgarden

LINE CASE NO. CASE TITLE TENTATIVE RULING 9:00 23CV416550 William Brooks, et.al. See below. 1 vs. Cheryl Boomgarden 9:00 23CV417433 Bank of America vs. Plaintiff moves this court to set aside dismissal pursuant to settlement between 2 Onorio Pacheco-feria parties. Defendant and plaintiff entered into a settlement agreement to pay off Defendant’s debt to Plaintiff. Case was dismissed pursuant to CCP 664.6. Defendant has not made a payment since September 20, 2025. Plaintiff’s motion is GRANTED. Defendant is ordered to make payment to Plaintiff of $5,364.14. 9:00 24CV449389 Samita Bhandary vs.

Plaintiff moves this court for reconsideration of the Court’s order on December 8, 3 Agradoot Ghatak, 2025 denying Plaintiff’s motion to reconsider the Court’s order striking Plaintiff’s et.al. complaint without leave to amend on October 9, 2025. The burden under CCP section 1008 for reconsideration is “comparable to that of a party seeking a new trial on the ground of newly discovered evidence...” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) Plaintiff’s motion is DENIED. 9:00 24CV453156 Leyva, et.al. vs Defendant moves this court for demurrer on the fifth cause of action of the 4-5 General Motors, LLC second amended complaint.

Plaintiff filed no objection to this motion. Plaintiff’s allegation is fraudulent concealment. Plaintiff is barred from filing this allegation based on the 3 year statute of limitations. Defendant’s motion is GRANTED.

Defendant moves this court to strike punitive damages claim. Plaintiff has failed to contest motion. Since this court is granting Defendant’s motion for demurrer, there is no fraudulent concealment allegation that would warrant a punitive damages claim. Defendant’s motion is GRANTED.

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Case Name: Hochhauser, et al. v. Boomgaarden, et al. Case No.: 23CV416550

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

According to the allegations of the third amended complaint (“TAC”), on January 26, 2022, plaintiffs Jan Hochhauser and Matthew Huerta’s (collectively, “Plaintiffs”) predecessor-ininterest William Brooks (“Brooks”) and Jack Schneider entered into an agreement with defendant Cheryl F. Boomgaarden (“Defendant”) and nonparty Dale E. Boomgaarden to purchase the real properties located at 7747 Monterey Street and 7740 Eigleberry Street in Gilroy in an agreement entitled “Commercial Purchase Agreement and Joint Escrow Instructions.” (TAC, ¶¶ 4-5.)

Subsequent to the execution of the purchase agreement, Dale E. Boomgaarden passed away, leaving Cheryl F. Boomgaarden as the sole trustee of the Boomgaarden Family Trust and the sole seller under the purchase agreement and the sole owner of the subject property. (See FAC, ¶ 6.) While the purchase agreement identifies Brooks as the buyer, Defendant was informed that Plaintiffs were designated as additional buyers of the subject property, and Defendant acknowledged and agreed with such designation of the buyers. (See FAC, ¶ 7.)

Brooks also entered into an assignment agreement with Brooks for the subject property. (Id.) Plaintiffs deposited $130,000 into escrow with First American Title Company (“FATC”): a deposit of $30,000 pursuant to paragraph 3.D(1) of the purchase agreement and another deposit of $100,000 pursuant to the addendum to the purchase agreement. (See FAC, ¶ 10.) The terms of the addendum to the purchase agreement require Plaintiffs to provide that additional $100,000 deposit within one year (365 days after the signing of the purchase agreement) for a six-month option, which Plaintiffs did by notifying Defendant of the exercise of that option and depositing the $100,000 with FATC. (See FAC, ¶ 11.)

While escrow was pending, Defendant wrongfully insisted FATC to not proceed with escrow and wrongfully claimed that Defendant was entitled to cancel escrow and the purchase agreement, and exact a severe forfeiture by Plaintiffs, despite Plaintiffs’ performance pursuant to the purchase agreement. (See FAC, ¶ 12.) Defendant refused to proceed with the escrow despite multiple requests by Plaintiffs, and continue to refuse to perform pursuant to the purchase agreement. (See FAC, ¶¶ 13-14.)

On December 26, 2024, Plaintiffs filed the TAC against defendant Cheryl F. Boomgaarden, trustee of the Boomgaarden Family Trust, asserting causes of action for:

1) Petition to compel arbitration; 2) Breach of contract; 3) Breach of the implied covenant of good faith and fair dealing; and, 4) Fraud—concealment.

Defendant moves for summary judgment, asserting that options must be exercised in the time and manner specified in the contract and she correctly cancelled the agreement after Plaintiffs failed to exercise the option to extend escrow.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant’s burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. ... The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10- 92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

The purchase agreement’s stated close of escrow

Paragraph 3, subparagraph B of the purchase agreement (“Terms of purchase and allocation of costs”) states that the “Close of Escrow (COE)” is defined as “360 Days after Acceptance.” (TAC, exh. A, p.1, ¶ 3B.) “Acceptance” is defined as “the time the offer or final counter offer is fully executed, in writing, by the recipient Party and is Delivered to the offering Party or that Party’s Authorized Agent.” (TAC, exh. A, p.13, ¶ 32 A (“Definitions and Instructions”).) 1

1 “Acceptance” is also referenced in paragraphs: 3E(1), H(1-3), K, L(1-7), N(1, 3-5) (“Terms of purchase and

allocation of costs” with certain terms to be performed within certain days “after Acceptance”), 7B (“Condition of

property on closing” requires “(i) the Property shall be delivered "As-ls" in its PRESENT physical condition as of

the date of Acceptance; [and] (ii) the Property, including pool, spa, landscaping and grounds, is to be maintained in

The addendum to the purchase agreement

The addendum to the purchase agreement, attached to the TAC and signed by the parties, states:

1. Should Buyer not complete transaction within one year (365 days after signing of agreement), one 6 month option is available to extend close of escrow with an additional non-refundable deposit of $100,000.

2. Seller to only renew leases to month to month periods during escrow period.

(TAC, exh. A, p.18 (“addendum to purchase agreement”); see also TAC, exh. A, p.19 (stating additional financing terms, restating that “[o]ne option for 6 month extension for an additional $100K, non-refundable”).)

The date of the signing of the purchase agreement

The purchase agreement, attached to the TAC and signed by the parties, was signed by Defendant—the party to be charged—on January 26, 2022, at which point the agreement was fully executed. (See TAC, exh. A, p.17; see also Pl.’s separate statement of undisputed material facts in opposition to motion for summary judgment, no. (“UMF 11”).)

Defendant meets her initial burden to demonstrate that she did not breach the addendum to the purchase agreement.

Defendant presents the deposition transcript of plaintiff Jan Hochhauser, who states that Mr. Brooks and Mr. Schneider did not provide a deposit of $100,000 within one year after the signing of the agreement, but rather hand delivered the $100,000 on January 30, 2023. (See Ortiz decl., exh. 1 (“Hochhauser depo”), pp.66:5-25, 67:1-25, 68:1-13, 72:4-11.) Defendant also presents her own declaration in which she states that “[a]s of January 21, 2023, escrow was not closed, and the buyers had not submitted $100,000 in order to extend escrow,” after which she “had delivered to Mr.

Brooks on January 24, 2023, three days after the deadline for close of escrow, [a] document [that] required performance by January 26, 2023.” (See Boomgaarden decl., ¶ 8, exh. D.) Defendant further states that Brooks returned an executed copy of the Extension of Time Amendment, which is undisputed. (See UMF 26; see also Boomgaarden decl. ¶ 8.) Defendant also states that as “the $100,000 deposit that was required to extend escrow was not deposited by the end of the day on January 26, 2023,” she “had delivered to Mr.

Brooks on January 27, 2023... a Notice of Cancellation.” (Boomgaarden decl., ¶ 9, exh. E.) Paragraph 17, subparagraph C(2) states that “Seller, after first Delivering to Buyer a Notice to Buyer to

substantially the same condition as on the date of Acceptance”), 9B (“Items included in sale” include “all items

specified included in paragraph 3P, if currently existing and owned by Seller at the time of Acceptance”) and 22C

(“A Copy of this Agreement including any counter offer(s) and addenda shall be delivered to Escrow Holder within

3 Days after Acceptance”).)

Perform, may cancel this Agreement if, by the time specified in this Agreement, Buyer does not take the following action(s): (i) Deposit funds as required by paragraph 3D(1) or 3D(2)... or [] Perform any additional Buyer contractual obligation(s) included in this Agreement.” (TAC, exh. A, p.10, ¶ 17D(2).) Further, it is undisputed that after cancelling the agreement, Brooks and Hochhauser tried to pressure Defendant into continuing with selling the property to them, but she refused. (See Boomgaarden decl., ¶ 10; see also UMF 29.)

Here, Defendant meets her initial burden to demonstrate that she did not breach the terms of any agreement as the terms of the addendum plainly state that the 6 month option to purchase the subject property was no longer available to Plaintiffs. (See Corrie v. Soloway (2013) 216 Cal.App.4th 436, 444 (stating that “[a]n option is an offer by which a promisor binds himself in advance to make a contract if the optionee accepts upon the terms and within the time designated in the option”); see also Erich v.

Granoff (1980) 109 Cal.App.3d 920, 927-928 (stating that an option is “a unilateral contract under which the optionee, for consideration he has given, receives from the optionor the right and the power to create a contract of purchase during the life of the option... [a]n option is transformed into a contract of purchase and sale when there is an unconditional, unqualified acceptance by the optionee of the offer in harmony with the terms of the option and within the time span of the option contract”); see also Palo Alto Town & Country Village, Inc. v.

BBTC Co. (1974) 11 Cal.3d 494, 498 (California Supreme Court stating that that “[i]t is well settled that when the provisions of an option contract prescribe the particular manner in which the option is to be exercised, they must be strictly followed”); see also Allen v. Smith (2002) 94 Cal.App.4th 1270, 1280 (stating that “[a]n option ‘is a right acquired by contract to accept or reject a present offer within a limited time in the future’... [t]he length of time within which an option may be exercised is an essential term to an option contract... on the lapse of the option period the ‘matter is completely ended and the offer is withdrawn’”); see also Wilson v.

Ward (1957) 155 Cal.App.2d 390, 394 (stating that “[u]pon the lapse of that time the matter [of the option] is completely ended and the offer is withdrawn”); see also Steiner v. Thexton (2010) 48 Cal.4th 411, 418 (California Supreme Court stating that “[t]he optionor offers to sell the subject property at a specified price or upon specified terms and agrees, in view of the payment received, that he will hold the offer open for the fixed time... [u]pon the lapse of that time the matter is completely ended and the offer is withdrawn”).)

Defendant meets her burden to establish that she was entitled to cancel the agreement per the terms of the agreement.

In opposition, Plaintiffs fail to demonstrate the existence of a triable issue of material fact.

In opposition, Plaintiffs argue that “[t]here is no evidence to suggest that that time was of the essence, and Defendant has made no specific claim that time was of the evidence.” (Pls.’ opposition to Def.’s motion for summary judgment (“Opposition”), pp.11:25-27, 12:1-16.) First, the agreement plainly states that “Time is of the essence.” (See TAC, p.14, ¶ 34.) Moreover, time is of the essence clauses “have nothing to do with options.” (Allen, supra, 94 Cal.App.4th at p.1281; see also Hendren v.

Yonash (1966) 243 Cal.App.2d 672, 679 (stating that “[t]he fact that the words ‘time is of the essence’ are not in the contract is not important”); see also Auslen v. Johnson (1953) 118 Cal.App.2d 319, 322 (stating that “[i]t is futile to discuss, as appellant does discuss, the question as to whether or not the written option contained anything indicating that time was of the essence thereof... [because s]uch considerations have nothing to do with

options”); see also Wilson v. Ward (1957) 155 Cal.App.2d 390, 394 (stating same).) This argument is without merit.

Plaintiffs next argue that “[i]f a contract does not state a specific time in which the parties are to meet the requirements of the contract, then the parties must meet them within a reasonable time... [and w]hat constitutes a reasonable time is a question of fact, depending upon the situation of the parties, the nature of the transaction, and the facts of the particular case.” (Opposition, p12:17-26.) Plaintiffs believe that while the option stated the time for the agreement was limited to one year, the agreement did not state a date for the increased deposit, “Defendant waived any claim that time was of the essence as to the funding of the $100,000 increased deposit to extend the close of escrow to July 26, 2023.” (Opposition, p.14:8-17.)

As previously stated, whether time is of the essence is immaterial for the determination of the option exercise date. Rather, Plaintiffs believe that they may revive the purchase agreement any time within the six month period covered by the option so as long as that time is reasonable. However, Plaintiffs do not present any evidence to support the reasonableness of such a claim and do not present any evidence that demonstrates a triable issue as to whether Mr. Brooks signed an Extension of Time Amendment that required performance by January 26, 2023.

Plaintiffs next argue that Defendant’s Notice to Buyer to Perform dated January 24, 2023 is void because “Defendant has not identified any obligation under Paragraph 17 that gives the Seller the right to simply cancel the transaction for failure to pay an increased deposit under an Addendum to the agreement in order for a Buyer to extend that close of escrow and an examination of Paragraph 17 reveals there is no such provision.” (Opposition, pp.15:3-26, 16:1-4.) However, the California Association of Realtors Notice to Buyer to Perform form plainly marks an “X” indicating that it was a “Contractual Action” that involved “Delivery of Increased Deposit,” citing paragraphs 3D(2) and 5A(2). This argument too lacks merit.

Plaintiffs then argue that there is a triable issue of material fact as to whether Defendant had a right to cancel because the Close of Escrow is stated to occur either 360 days after acceptance or 365 days after acceptance. (See Opposition, p.16:8-16.) Here, however, this does not demonstrate a triable issue of material fact because Plaintiffs’ right to cancel is unaffected whether the 360 day or 365 day period is used since Plaintiffs did not deposit the monies until after the close of escrow.

Plaintiffs also argue that “Defendant never made a demand to the Plaintiffs to close escrow by issuing a Demand to Close Escrow “DCE” form to them.” (Opposition, p.16:8-24.) However, Defendant did not intend to close escrow.

Plaintiffs also complain about Defendant having a back up purchaser who ended up purchasing the subject property and failing to disclose to Plaintiffs that she had a back up purchaser, and that allowing Defendant to cancel the escrow results in a $30,000 windfall for Defendant constituting a forfeiture. Here, whether Plaintiffs had a back up purchaser does not concern any of the causes of action. As for the $30,000 non-refundable deposit constituting a windfall, the law abhors a forfeiture line of cases are not applicable to options. (See Bekins Moving & Storage Co. v. Prudential Ins. Co. (1985) 176 Cal.App.3d 245, 253 (stating that “[i]n order for there to be a ‘forfeiture’ there must be some right or vested interest involved... [a]n option is merely an

offer”); see also Hayward Lumber & Inv. Co. v. Construction Products Corp. (1953) 117 Cal.App.2d 221, 229 (stating that “[s]ince the optionor is bound while the optionee is free to accept or not as he chooses, courts are strict in holding an optionee to exact compliance with the terms of the option... [and as] defendant effect[ively] rejected the option, which became extinguished with the expiration of the term of the lease... Section 3275 [concerning relief in case of a forfeiture] is therefore inapplicable in these circumstances”); see also Simons v.

Young (1979) 93 Cal.App.3d 170, 182 (stating that “[w]hen that time [the time in which the option is to be exercised] expires, the option holder has received the full agreed equivalent of the price he paid for his option; and a refusal to give effect to an acceptance that is one minute late results in no forfeiture”).) Plaintiffs cite to Magic Carpet Ride LLC v. Rugger Investment Group, L.L.C. (2019) 41 Cal.App.5th 357; however, that case is inapposite as it does not involve an optionee.

Lastly, Plaintiffs seek a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h) to obtain discovery of needed facts. Plaintiffs assert that Defendant has failed to comply with the document production request that was served on Defendant over ten months ago. However, Plaintiffs and Plaintiffs’ counsel fail to explain what they expect to obtain through further discovery and why those facts are essential to opposing the specific issues. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255 (stating that “Mr.

Monroy's second declaration, like his initial one, failed to explain how the outstanding discovery was necessary for appellant's opposition... [b]ased on this deficiency alone, the trial court had the discretion to deny appellant's request for a continuance... [i]t is not sufficient under the statute merely to indicate further discovery or investigation is contemplated... [t]he statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist’”); see also 501 East 51st Street, etc. v.

Kookmin Best Ins. Co., Ltd. (2020) 47 Cal.App.5th 924, 939 (stating that “[t]he party’s supporting declarations must show: ‘(1) Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion’; (2) ‘The specific reasons why such evidence cannot be presented at the present time’; (3) ‘An estimate of the time necessary to obtain such evidence’; and (4) ‘The specific steps or procedures the opposing party intends to utilize to obtain such evidence’... [c]ounsel’s supporting declaration was very general, and did not explain why the answer to any of the questions at the PMK deposition was essential to opposing the summary adjudication motion”); see also Johnson v.

Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 (stating same; also stating that “Plaintiff here failed to detail the facts she expected to discover and the specific procedures she intended to use to obtain that evidence.... Plaintiff therefore was not entitled to a mandatory continuance under Code of Civil Procedure section 437c, subdivision (h)”).) Trial is scheduled in about 1 1⁄2 months. Plaintiff’s request for a continuance pursuant to section 437, subdivision (h) is DENIED.

Plaintiffs’ objections numbers 1, 3-6 are OVERRULED. The Court did not rely on the document attached as Exhibit A to the Boomgaarden declaration as the document is also attached to the TAC. The Court did not rely on Exhibit A of the Boomgaarden declaration; accordingly, the Court did not rely on the evidence submitted by Plaintiffs’ that is the source of the objection number 2.

As Plaintiffs fail to demonstrate the existence of a triable issue of material fact, Defendant’s motion for summary judgment is GRANTED.

Defendant shall prepare and submit a proposed final order and judgment consistent with this tentative ruling.

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