Opinion
Hyun Young Lee, Plaintiff, Pro se, Los Angeles, CA.
For Select Portfolio Servicing, Inc., Defendant: John J Calvagna, LEAD ATTORNEY, Brian Andrew Paino, McGlinchey Stafford, Irvine, CA.
ORDER GRANTING DEFENDANT SELECT PORTFOLIO SERVICING, INC.'S MOTION FOR SUMMARY JUDGMENT
HON. GEORGE H. WU, United States District Judge.
This matter comes before the Court on defendant Select Portfolio Servicing, Inc.'s (" Defendant") Motion for Summary Judgment (the " Motion"). As of the date of this Order, plaintiff Hyun Young Lee (" Plaintiff") has not filed a response to the Motion and she failed to appear at the hearing thereon. Having considered the Motion, related filings and pleadings, and the record, the Court finds as follows:
I. Background
On November 13, 2014, Defendant moved for summary judgment on the Complaint filed in this action by Plaintiff, who is proceeding in propria persona . Plaintiff has not opposed the motion, or indicated any desire or intent to do so, despite the fact that the hearing on the motion has been continued multiple times to its current hearing date, February 2, 2015.
Defendant removed the case to this Court, on the basis of diversity jurisdiction, on October 9, 2014.
II. Analysis
A. Summary Judgment Standard
Summary judgment shall be granted when a movant " shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In other words, summary judgment should be entered against a party " who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010).
To satisfy its burden at summary judgment, a moving party without the burden of persuasion " must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see also Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) ( en banc ); Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment[, but instead] must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.
T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (internal citations and quotation marks omitted). In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence, and views all evidence and draws all inferences in the light most favorable to the non-moving party. See id. at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); see also Hrdlicka v. Reniff, 631 F.3d 1044 (9th Cir. 2011); Motley v. Parks, 432 F.3d 1072, 1075 n.1 (9th Cir. 2005) ( en banc ); Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1 (9th Cir. 2005).
Plaintiff has not opposed the instant motion. In addition to the effect this failure has under Federal Rule of Civil Procedure 56(a) , (c)(1), (c)(3), and (e)(2) and (3), this Court's Local Rules 56-2 and 56-3 are relevant. While the Court cannot consider Plaintiff's non-opposition, in and of itself, as a basis to grant Defendant's motion, see C.D. Cal. L.R. 7-12, Local Rule 56-2 requires any party opposing a summary judgment motion to file " a separate document containing a concise 'Statement of Genuine Disputes' setting forth all material facts as to which it is contended there exists a genuine dispute necessary to be litigated.'" C.D. Cal. L.R. 56-2. Plaintiff has submitted no Statement of Genuine Disputes, as a separate document or otherwise. Nor has she made any evidentiary objections, meaning that she has waived the opportunity to have excluded from consideration any inadmissible evidence. Local Rule 56-3 provides that, when deciding a motion for summary judgment,
" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).
Subparagraph (c)(1) of Rule 56 sets forth the evidentiary requirements for " [a] party asserting that a fact...is genuinely disputed." Fed.R.Civ.P. 56(c)(1).
" The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3) (emphasis added).
" If a party...fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... (2) consider the fact undisputed for purposes of the motion; [or] (3) grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it...." Fed.R.Civ.P. 56(e)(2), (3).
the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the " Statement of Genuine Disputes" and (b) controverted by declaration or other written evidence filed in opposition to the motion.
C.D. Cal. L.R. 56-3. Moreover, " whatever establishes a genuine issue of fact must both be in the district court file and set forth in the response." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (emphasis in original); see also Schwarzer, Tashima, et al., California Practice Guide: Federal Civil Procedure Before Trial (" Schwarzer & Tashima") (2013) § § 14:330-330.2, at 14-114 - 14-115. Pro per litigants must follow the same rules of procedure that govern other litigants. See American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also C.D. Cal. L.R. 83-2.10.3 (" Any person appearing pro se is required to comply with these Local Rules, and with the F.R.Civ.P [and] F.R.Evid....."). But see Schwarzer & Tashima (2014) § 14:102.9b, at 14-33 (noting that " [m]any courts take extra care with pro se litigants, advising them of the need to respond and the risk of losing by summary judgment if an adequate response is not filed. In addition, the court may seek to reassure itself by some examination of the record before granting summary judgment against a pro se litigant.").
The upshot of this is that, assuming Defendant has adequately supported the material facts that it claims exist without controversy and that it has satisfied its burden as the moving party, Plaintiff will not be able to avoid an adverse summary judgment ruling. Nevertheless, " [s]ummary judgment may be resisted and must be denied on no other grounds than that the movant has failed to meet its burden of demonstrating the absence of triable issues." Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993); see also Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) (holding that a ruling granting summary judgment where movant had not met its burden and opponent had merely filed its opposition late would effectively serve as sanction for late filing in contravention of Henry ); Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (recognizing a similar rationale where motion completely unopposed).
B. Pertinent Undisputed Facts
Plaintiff obtained a loan in October 2005, reflected in a promissory note that was secured by a deed of trust encumbering her real property. See Defendant Select Portfolio Servicing, Inc.'s Statement of Uncontroverted Facts and Conclusions of Law in Support of Motion for Summary Judgment (" DSUF"), Docket No. 17-1, ¶ 1. Defendant is an authorized servicer of Plaintiff's mortgage loan. See id. ¶ 3. Plaintiff defaulted on her loan in or about May 1, 2012. See id. ¶ 5. Defendant sent her written notice of her default by way of First Class Mail, on February 21, 2013. See id. ¶ ¶ 6, 9.
C. Plaintiff's Claims
Plaintiff has pled three claims: 1) breach of existing contract, 2) breach of the implied covenant of good faith and fair dealing, and 3) intentional infliction of emotional distress.
1. Breach of Contract
The elements of a breach of contract claim under California law are " the making of the contract and its terms, plaintiff's performance, defendants' breach, and damage to plaintiff therefrom." M. G. Chamberlain & Co. v. Simpson, 173 Cal.App.2d 263, 274, 343 P.2d 438 (1959). Defendant argues that Plaintiff's breach of contract claim is based only on the allegation that Defendant breached by failing to send Plaintiff the Notice of Default on her loan. See Complaint ¶ ¶ 11-12. Defendant argues that Plaintiff did not perform her own obligations, and has not identified or evidenced the provision of the Promissory Note or Deed of Trust that Defendant allegedly violated. In other words, Defendant has satisfied its burden, as the moving party on this motion, under Nissan Fire and Devereaux, by pointing out the absence of evidence supporting Plaintiff's claim.
Defendant goes beyond mere " pointing out, " however, by demonstrating that the Deed of Trust -- specifically paragraph 22 of that document -- is the instrument containing the default provisions for Plaintiff's loan. Defendant has evidenced that it complied with the notice requirements contained in that paragraph/instrument when it sent a letter to Plaintiff, via First Class mail, on February 21, 2013. See DSUF ¶ ¶ 6, 9; Docket No. 18-1, Exh. A, ¶ 22; id., ¶ 15 (requiring notices to be in writing, indicating that they are " deemed to have been given...when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means, " stating that the notice address will be the property address unless the borrower designates a substitute notice address, and obligating the borrower to promptly notify the lender of any change of address). Defendant observes that the question of sufficient notice of the default and of the trustee's sale -- the latter appearing as though it might also serve as a basis for Plaintiff's breach of contract claim, see Complaint ¶ ¶ 7-9, 11 -- must be examined by more than just the terms of the Deed of Trust, because the power of sale cannot be invoked without compliance with the notice provisions under California law. Defendant asserts -- and Plaintiff has not controverted -- that it satisfied those notice requirements as well. See DSUF ¶ ¶ 7-8, 10-13; see also Cal. Civ. Code § § 2924, 2924b(b)(1), (2), 2924f(b)(1)-(3).
Given the foregoing, the Court will grant Defendant's motion on this claim.
2. Breach of Implied Covenant
As to Plaintiff's claim for breach of the implied covenant of good faith and fair dealing, Defendant notes that it is impossible to even determine from the Complaint the nature of her claim in this regard. The Court is forced to agree. The only somewhat substantive allegation in Plaintiff's claim is that " Defendant breached this implied covenant when it knowingly and/or recklessly did not perform existing contractual terms and conditions thereof." Complaint ¶ 17. In that sense, it is hard to understand where Plaintiff's breach of contract claim ends and where her implied covenant claim begins.
In any event, in connection with this claim Defendant takes the position that it has demonstrated compliance with the contract, and directs the Court to law indicating that the implied covenant cannot be used to create obligations not contemplated by the contract, an accepted limitation on the doctrine (and one which Plaintiff acknowledges in her Complaint, see Complaint ¶ 14). As such, Defendant has, in effect, pointed out that Plaintiff has no evidence which can support her implied covenant claim, and -- again -- Plaintiff has not responded. As to this claim as well, therefore, the Court will grant the motion.
3. Intentional Infliction of Emotional Distress
With respect to Plaintiff's claim for intentional infliction of emotional distress (which is based on having " recklessly sold plaintiff's dwelling, " Complaint ¶ 20), Defendant argues that it simply lawfully enforced the power of sale provisions under Plaintiff's Deed of Trust, as discussed above. Considering that Defendant's conduct -- it is only Defendant's conduct that is at issue on this motion -- was authorized both by contract and California law, it could not have been sufficiently extreme or outrageous as required for such a claim. The Court will grant the motion as to this claim as well.
III. Conclusion
For the above reasons, the Court grants Defendant's motion in full.
Accordingly, it is hereby ORDERED that:
1. Defendant's Motion is GRANTED.
2. Defendant shall lodge a proposed judgment.