United States District Court, C.D. California
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
D. WRIGHT, II UNITED STATES DISTRICT JUDGE.
Selene Finance LP (“Selene”), together with
Defendant M&T Bank move for summary judgment on all of
Plaintiff Serafin Mendez's (“Plaintiff”)
negligence claim. (Mot., ECF No. 50; Joinder Not. Motion, ECF
No. 57.) Selene argues that there are no genuine issues of
material fact and Plaintiff failed to provide evidence of
either a breach of duty or any damages. (Id. at 1.)
For the reasons discussed below, the Court
GRANTS Defendant's Motion for Summary
Judgment in its entirety as to both Selene and M&T Bank.
(ECF No. 50.)
February 20, 2013, Plaintiff borrowed $451, 668.00 (the
“Loan”) and executed a promissory note secured by
a Deed of Trust encumbering real property located in
Lancaster, California (the “Property”). (Second
Am. Compl. (“SAC”) ¶¶ 13-14, ECF No.
32; Def.'s Statement of Uncontroverted Facts
(“SUF”) ¶ 1, ECF No. 50-1.) The Deed of
Trust was also recorded on February 20, 2013, and named
Pacificbanc Mortgage as the beneficiary. (SUF
¶¶ 1-2.) Sometime in 2014, Plaintiff
defaulted on her payments on the loan, and the foreclosure
trustee recorded a Notice of Default (“NOD”) on
September 17, 2014. (SUF ¶¶ 3-4.) The NOD provided
that as of September 16, 2014, the default amount due was
$32, 347.67. (SUF ¶ 5.)
made no Loan payments in 2014 and then made a total of $23,
327.49 in Loan payments in 2015. (SUF ¶¶ 6-7.)
Plaintiff paid this amount over the course of four payments,
as follows: (1) $10, 000.00 on February 3, 2015; $3, 331.49
on March 2, 2015; (3) $6, 664.00 on April 24, 2015; and $3,
332.00 on June 8, 2015. (SUF ¶ 8.) The payments
made in 2015 were insufficient to reinstate the Loan and
bring it current. (SUF ¶ 9.) On August 20, 2015, the
trustee recorded the Notice of Trustee's Sale
(“NOS”). (SUF ¶ 10.) On October 3, 2016, the
servicing of the Loan transferred to Selene. (SUF ¶ 11.)
As of that date, the Loan was due for the August 2014
payment. (SUF ¶ 12.) A foreclosure sale of the Property
took place on June 13, 2017. (SUF ¶ 23.)
filed his original complaint in the Los Angeles Superior
Court on November 17, 2016, alleging causes of action for
negligence, violation of California Civil Code § 2923.6,
accounting, and violation of California's Unfair
Competition Law (“UCL”) against Selene and the
Wolf Firm. (ECF No. 1-1.) Selene removed the case to
this Court from the Los Angeles Superior Court on December
19, 2016. (Not. Removal, ECF No. 1.) On December 27, 2016,
Selene moved to dismiss the Complaint. (ECF No. 7.) The Court
granted the Defendant's motion in its entirety on
February 7, 2017, but also granted Plaintiff leave to amend
with regard to his UCL and negligence claims. (ECF No. 16.)
Plaintiff filed the SAC on May 2, 2017, alleging a single
negligence claim based on Selene's failure to credit $23,
327.49 to his account. (See generally SAC.) In the SAC,
Plaintiff added M&T Bank as a named defendant.
(Id. ¶ 4.)
propounded written discovery on Plaintiff on August 10, 2017,
including Requests for Admissions. (SUF ¶ 13.) Plaintiff
did not respond. (SUF ¶ 14.) Plaintiff also failed to
respond to Selene's meet-and-confer letter sent on
October 20, 2017. (Id.) On November 7, 2017, Selene
moved for summary judgment. (ECF No. 50.) On December 13,
2017, Defendant M&T Bank joined in Selene's Motion.
(Not. Joinder, ECF No. 57.) Plaintiffs did not file
judgment is appropriate when “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). The
initial burden rests with the movant to demonstrate the
absence of a fact or facts necessary for one or more
essential element of the claim for which summary judgment is
sought. Celotex Corp. v. Catrett, 477 U.S. 317, 323
this initial burden is met, responsibility shifts to the
non-moving party to establish specific facts demonstrating
the existence of a genuine issue of fact for trial.
Id. at 330. In so doing, the non-moving party must
make more than “conclusory allegations.”
Lujan v. Nat'l Wildlife Fed'n, 498 U.S. 871,
888 (1990). They cannot simply rely upon the pleadings.
Id. at 902. If the non-moving party fails to make a
showing to establish the existence of all elements essential
to the party's case for which he bears the burden of
proof, then summary judgment should be granted to the moving
party. Id. at 884.
deciding the outcome of a motion for summary judgment,
“the inferences to be drawn from the underlying facts .
. . must be viewed in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation omitted). The Court looks at the facts presented by
the non-moving party, as well as all undisputed facts, to
make a determination of whether the moving party is entitled
to judgment as a matter of law. T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d
626, 631 (9th Cir. 1987). If the Court determines that no
rational trier of fact could find for the nonmoving party on
the claims at issue, then summary judgment is appropriate.
Matsushita, 475 U.S. at 587.
Court may not grant a motion for summary judgment on the
basis that the non-moving party fails to oppose it. See
Cristobal v. Siegal, 26 F.3d 1488, 1494-95 & n.4
(9th Cir. 1994). “However, when the opposing party
fails to challenge the facts asserted by the moving party . .
. the Court may consider the facts undisputed (or
‘deemed admitted') for purposes of the
motion[.]” Acevado v. City of Anaheim, No.
8:14-cv-01147-ODW(E), 2016 WL 79786, at *3 (C.D. Cal. Jan. 6,
2016). Accordingly, the Court may grant summary judgment
where the “undisputed facts, the motion, and its
supporting papers” demonstrate that the movants are
entitled to it. Id.