Opinion
G052523
01-17-2017
JOHN KACZMAREK, Cross-complainant and Appellant, v. WELLS FARGO BANK, N.A., Cross-defendant and Respondent.
Law Offices of Rick L. Raynsford and Rick L. Raynsford for Cross-complainant and Appellant. Severson & Werson, Jan T. Chilton and Kerry W. Franich, for Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00566800) OPINION Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Reversed with directions. Law Offices of Rick L. Raynsford and Rick L. Raynsford for Cross-complainant and Appellant. Severson & Werson, Jan T. Chilton and Kerry W. Franich, for Cross-defendant and Respondent.
INTRODUCTION
John Kaczmarek appeals from a judgment in favor of respondent Wells Fargo Bank, N.A., after the trial court granted Wells Fargo's motion for summary judgment. Kaczmarek asserts on appeal that there are triable issues of material fact with respect to his cause of action for promissory estoppel against Wells Fargo, which foreclosed on his residence.
We reverse and remand to the trial court for additional proceedings. Although Kaczmarek presented admissible evidence to establish a triable issue of fact as to the element of a clear and unambiguous promise, the trial court ruled to the contrary, and did not reach the additional elements of a cause of action for promissory estoppel as raised by Wells Fargo: reliance and damages. Accordingly, we return the matter to the trial court for rulings on the remainder of Wells Fargo's summary judgment motion.
FACTS
In the operative third amended cross-complaint, Kaczmarek alleged that he borrowed money in 2002 secured by a first trust deed on his residence in Mission Viejo. The lender assigned Kaczmarek's note and deed of trust to Citimortgage, Inc. Kaczmarek later obtained a $150,000 home equity line of credit from Wells Fargo, secured by a second deed of trust.
This case began as an interpleader action filed by one T.D. Service Company. At some point not reflected in the register of actions, Kaczmarek filed a cross-complaint. Three demurrers later, Kaczmarek had stated three causes of action.
The third amended cross-complaint does not reveal the amount of the loan; the record does not include any exhibits to the cross-complaint. In his declaration in opposition to Wells Fargo's summary judgment motion, Kaczmarek stated that he borrowed $275,000 in 2002.
The cross-complaint recounts a complicated financial tale that calls to mind the celebrated Abbott and Costello routine "Who's on First." Whether Citimortgage or Wells Fargo was in first position is not relevant to the issues in this appeal.
Kaczmarek fell behind on his loan payments. He allegedly contacted Wells Fargo in November 2010, to modify the payments on his line of credit. Wells Fargo recorded a notice of default in June 2011, and a notice of trustee sale in September 2011, reciting an unpaid balance of nearly $160,000. The trustee sale was set for October 20, 2011, and Kaczmarek filed for Chapter 7 bankruptcy protection on that day. The bankruptcy was discharged on February 3, 2012, and the property was sold at the trustee's sale on March 5, 2012.
The third amended cross-complaint alleged one cause of action against Wells Fargo, for promissory estoppel. Kaczmarek alleged he was eligible for a loan modification through the Home Affordable Modification Program and that Wells Fargo made a "clear and unambiguous promise" to process the modification and not to foreclose while this process was going on. Because of this promise, Kaczmarek alleged, he did not take steps to cure his default by seeking to refinance the Wells Fargo debt; seeking real estate investors to pay off the Wells Fargo debt; allowing his relatives to make payments on the debt or to buy the house and rent it to him; "quick" selling the house; or filing for Chapter 13 bankruptcy.
Wells Fargo moved for summary judgment on December 12, 2014. The evidence in the record submitted in opposition to Wells Fargo's motion consisted of declarations from Kaczmarek and his attorney, no exhibits. Wells Fargo successfully objected to five paragraphs in Kaczmarek's declaration, and Kaczmarek has not asked for review of any evidentiary rulings. Kaczmarek's argument was, in essence, that his friend George Bosy was helping him get loan modifications from Citimortgage and Wells Fargo, and Wells Fargo had made the promise to postpone the foreclosure sale to both him and Bosy.
The opposition declarations refer to exhibits, but there are none in the record. The record also includes documents opposing a summary judgment motion filed by Citimortgage, but the briefing on that motion was continued and the hearing postponed for a month. The Citimortgage summary judgment motion is not before us.
No declaration from Bosy was submitted in Kaczmarek's opposition. Bosy's deposition transcript was not included in the opposition papers. The record does not include a reporter's transcript of the hearing on the Wells Fargo motion, but apparently Bosy's deposition was discussed at the hearing. The final ruling on the Wells Fargo motion modified the tentative ruling to reflect the trial court's consideration of the Bosy deposition transcript after the hearing.
The trial court granted Wells Fargo's motion for summary judgment on the ground Kaczmarek had presented no admissible evidence of a clear and unambiguous promise by Wells Fargo to postpone a foreclosure sale while considering a loan modification. The court entered judgment in favor of Wells Fargo on June 11, 2015.
Kaczmarek moved for a new trial based on his contention the trial court had not considered Bosy's deposition, excerpts of which were submitted in opposition to the Citimortgage motion. Even though the deposition evidence was not part of the opposition to Wells Fargo's motion, the court considered it before issuing the final ruling. Kaczmarek's motion for new trial was denied on August 7, 2015.
DISCUSSION
We review an order granting summary judgment de novo. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415 (Granadino).) A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If a defendant makes a prima facie showing justifying a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff may not rely on the allegations of the complaint to oppose the motion (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 643), but must present admissible evidence of a triable issue of material fact. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356; Code Civ. Proc., § 437c, subd. (d).)
Kaczmarek does not dispute that Wells Fargo made a prima facie showing justifying a judgment in its favor. He concentrates instead on triable issues of material fact. Thus he acknowledges that the burden of production shifted to him. The only cause of action alleged in the third amended cross-complaint against Wells Fargo was one for promissory estoppel, and Kaczmarek argues on appeal that he showed a triable issue of fact as to each element of this cause of action.
Promissory estoppel is easily described: "'[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee . . . and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'" (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901, quoting Rest.2d Contracts, § 90.) "The elements of a promissory estoppel claim are '(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.' [Citation.]" (US Ecology, Inc. v. State of California, supra, 129 Cal.App.4th at p. 901.) Promissory estoppel binds a promissor "'when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.' [Citation.]" (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1041.) A promissory estoppel cause of action substitutes reliance for the consideration normally required for an enforceable contract. (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1007.)
The trial court found that Kaczmarek had not met his burden to show a triable issue of material fact regarding a clear and unambiguous promise not to foreclose on his residence while a loan modification application was being processed. We disagree. Bosy's deposition, which the court considered after oral argument, created at least a triable issue of fact as to whether Wells Fargo promised to postpone the foreclosure sale.
"Q . . . Did Wells Fargo ever promise you [Bosy] that it would postpone the foreclosure sale?
"A Yes."
The lack of a clear and unambiguous promise was not the only basis for Wells Fargo's motion, however. Wells Fargo also raised the issues of justifiable and detrimental reliance and damages. The trial court did not reach these issues. On remand, then, the trial court should examine the evidence and argument submitted by both parties and determine whether there is a triable issue of fact with respect to reliance and damages. The court may decide whether it would like additional briefing on these subjects.
DISPOSITION
The judgment is reversed and the matter returned to the trial court for further proceedings on Wells Fargo's summary judgment motion. Kaczmarek is to recover his costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.