First American Title Insurance Company vs. Yarbrough

The referee shall lodge a modified proposed order consistent with the above instructions.

The referee shall provide notice of this ruling.

8. First American Title Insurance Company vs. Yarbrough

25-01486497

Motion for Summary Judgment and/or Adjudication

Plaintiff First American Title Insurance Company’s motion for summary judgment / adjudication is DENIED. (Code Civ. Proc., § 437c [authorizing motion].)

Moving party’s request for judicial notice is GRANTED, limited to the fact of recordation, but not the truth of the contents of the recorded documents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [judicial notice of recorded documents]; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [“the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein”].)

First, moving party has not met its initial burden on the instant motion, as it relies on a theory not pled in its Complaint. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [pleadings “set the boundaries of the issues to be resolved at summary judgment”]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 [summary judgment motion cannot be resolved based on unpled theories]; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 [“Summary judgment cannot be granted on a ground not raised by the pleadings”]; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648–649 [“Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings;” citation omitted].)

Plaintiff’s Complaint alleges that it was damaged due to defendant Yarbrough providing an incorrect payoff demand to resolve a reverse mortgage deed of trust / lien against the subject property to the escrow holder, on which the escrow holder relied. (Complaint, ¶¶ 7 [“[t]he entity handling the escrow was given a payoff demand by Yarbrough, upon which it relied to attempt to pay off the reverse mortgage”], 8 [“Relying on the payoff demand provided by Yarbrough, $238,135.23 of the proceeds from the sale were transferred to the servicer for the reverse mortgage”], 9 [“Ultimately, the amount stated in the payoff demand provided by Yarbrough was incorrect, and the $238,135.23 was short of the full amount required to repay the reverse mortgage”], 11-12 [plaintiff’s payment to resolve reverse mortgage], 21 [“because of the inaccurate payoff demand statement provided by Yarbrough, the escrow holder did not hold back enough of the sale proceeds to repay the reverse Mortgage”].) The Complaint (¶ 20) also alleges the following “agreement” by defendant: “Yarbrough, in his individual capacity and in his capacity as trustee of the Trust, had agreed to use whatever portion of the proceeds of the sale of the Property to Pine Forest were needed in order to fully satisfy and obtain the release of the reverse mortgage.” (Emphasis added.)

However, the instant motion does not argue that the shortfall was due to an incorrect payoff demand provided by defendant, and relies on a different agreement than alleged in the Complaint, i.e. a written purchase agreement stating in relevant part: “Title is taken in its present condition subject to all encumbrances, easements, covenants, conditions, restrictions, rights and other matters, whether of record or not, as of the date of Acceptance except for: (i) monetary liens of record unless Buyer is assuming those obligations or taking the Property subject to those obligations; and (ii) those matters which Seller has agreed to remove in writing. For any lien or matter not being transferred upon sale, Seller will take necessary action to deliver title free and clear of such lien or matter.” (Moving Party Separate Statement, Fact No. 8, and evidence cited in support thereof.)

Agreeing to deliver the property free and clear of “any lien or matter not being transferred upon sale” (Fact No. 8) is not the same thing as “agree[ing] to use whatever portion of the proceeds of the sale of the Property to Pine Forest were needed in order to fully satisfy and obtain the release of the reverse mortgage” (Complaint, ¶ 20). Moving party provides no evidence of any agreement by defendant specifically to use the sale proceeds to retire the reverse mortgage obligation, as alleged in the Complaint; rather, moving party relies on an entirely different alleged agreement. Thus, as the motion relies on an unpled theory, moving party has not met its initial burden on summary judgment. (Laabs v. City of Victorville, supra at 1253.)

Further, even if moving party had met its initial burden, the evidence shows triable issues of material fact as to causation and damages, as well as whether the incorrect reverse mortgage payoff calculation was due to the escrow entity’s actions / inaction, in whole or in part, such that it cannot be determined as a matter of law whether defendant’s retention of the entire amount of damages claimed by plaintiff is “unjust.” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231 [when a plaintiff alleges unjust enrichment, a court may construe the cause of action as a quasi-contract claim seeking restitution]; Professional Tax Appeal v.

Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238 [the elements to a claim for “unjust enrichment” are often “simply stated as ‘receipt of a benefit and unjust retention of the benefit at the expense of another;’” internal citation omitted]; Comm. to Save Beverly Highland Homes Assoc. v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260 [moving party’s papers and evidence are strictly construed on summary judgment]; Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 185 [moving parties’ own evidence, and inferences therefrom, may disclose triable issues]; Moving Party Separate Statement, Fact Nos. 12 and 13, and evidence cited in support thereof [escrow holder withheld $238,135.72 to pay off the reverse mortgage obligation, rejected by the lender as insufficient, requiring plaintiff to pay an additional $132,163.25 to resolve on or about 5-7-26]; Sinclair Decl. in support of motion, Ex. 17 [Notice of Trustee’s Sale recorded 3-17- 25 by “MTC Financial dba Trustee Corps,” identifying the estimated amount of the outstanding obligation on the subject property as $365,170.02, which is different than the total amount withheld by the escrow holder ($238,135.72) and the amount paid by plaintiff ($132,163.25), no explanation as to the difference; see also Defendant’s Separate Statement, Additional Fact Nos. 1-7, and evidence cited in support thereof, including Yarbrough Decl., ¶ 20, Ex.

C [evidence that escrow entity received payoff demand directly from reverse mortgage lender on or about 4-22-25, not defendant (despite defendant’s attempts to obtain it), and prior to plaintiff’s payment on or about 5-7-25].)

Defendant shall give notice.

9. American Express National Bank vs. Kim

25-01482908

1. Motion for Summary Judgment and/or Adjudication 2. Case Management Conference

Case Dismissed on June 9, 2026.