Defendant’s Motion for Summary Adjudication of the remaining 1st, 2nd, 4th and 5th Causes of Action in the Second Amended Complaint is GRANTED.

The motion for summary judgment is GRANTED.

Defendant is ordered to give notice and to submit a proposed order and judgment.

Scope of Motion

As relevant here, summary adjudication is available for causes of action or claims for punitive damages, not “Issues.” (See CCP § 437c(f)(1); compare subd.(t); see also DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 412, 415, 419-21; Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 241.)

Plaintiffs’ complaint frames the scope of the motion and what the Defendant must address.   Moving Party’s burden is to address the theories pleaded in the complaint.  (See Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493.)

1st Cause of Action

The Court grants the motion for summary adjudication of the 1st cause of action for Breach of Contract.  This cause of action alleges that Defendant advanced $972.32 in escrow funds to buy homeowners’ insurance for Plaintiffs (when Plaintiffs had already bought insurance on their own) and never reimbursed Plaintiffs for the funds so misused.  (See SAC ¶ 18, 25, 29.)

The competent evidence refutes this allegation, establishing that the $972.32 “advance” was not used as Plaintiff believes it was.   Escrow disbursements were not to buy insurance on Plaintiff’s behalf.  It appears that Defendant ended up cancelling any intended disbursement.  (See Kadimik Dec ¶ 23; see also Exhibit 1 at 7/18, 6/1, 5/29, 5/22, 5/19/18 entries; see Exhibit 14 p. 1.)

The annual escrow disclosure statement similarly shows that a disbursement had been expected to be made in June 2018 for hazard insurance, but, in the end, no such disbursements were made.  (See Exhibit 12, disbursements, hazard insurance; see also Exhibit 14 p. 2; Exhibit 3, pp.4-5, Section 3; Exhibit 18 page 100, Exhibit 19 p. 10-11.)

At the end of the escrow accounting year, a surplus in the escrow account was credited to/refunded to the Plaintiffs. (See Armstrong Dep.  Tr. pp. 25, 41, and Exhibit 12, Exhibit 14 p.2; see 12 CFR 1024.17(f)(2).)

In sum, based on the competent evidence, it appears that no funds were expended by the Defendant on procuring insurance for Plaintiffs.  As such, the Court find there is no triable issue shown on the 1st cause of action.  The  customer service representatives appear to have regrettably misinformed Plaintiffs at times (Moving Exhibit 1, Exhibit 15, Exhibit 17 p.1), but this misinformation does not alter what happened financially according to the competent documentary evidence before the Court.

The Court also refers to the rulings on the evidentiary objections submitted in the reply.

2nd Cause of Action


The Court grants the motion for summary adjudication of the 2nd cause of action for Breach of the Implied Covenant of good faith and fair dealing.  The operative complaint tenders the same concern about the previously described use of escrow funds (for unnecessary insurance), as well as frustration about a misapplied March 2018 payment (See SAC ¶ 33, 34.)   The Court grants summary adjudication because there are no cognizable damages that appear to remain on the matter.

Breaching the implied covenant sounds in contract, not in tort.  (See Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 206; Erlich v. Menezes (1999) 21 Cal.4th 543, 558.)  Plaintiffs concede that, by about September of 2018, they received a credit for an extra month of mortgage payment thus taking care of the “misapplied” payment. (See Armstrong Dec ¶ 14 and Armstrong Dep. Tr. p. 13-14; Opp. Brf., p. 5, 6; Moving Exhibit 14, and Exhibit 17.)

There is unrefuted evidence that no negative reporting occurred on the loan. (See Mat. Fact # 13, and Plaintiffs’ Response; Kadimik Dec. ¶ 24, Moving Ex. 17 p. 1, final para.)  There is no evidence that Plaintiffs’ property taxes or any escrow disbursements were missed by the Defendant.

In response to Material Facts 13 and 14, Plaintiffs were supposed to cite evidence that shows a triable issue remains on damages.  (See CCP § 437c(b)(3) and CRC 3.1350(f)(2).)  By their response, the remaining dispute is characterized as being about the lack of reimbursement for the spending of escrow funds on unnecessary home insurance for them.  (See Response to MF #14 and Armstrong Dec ¶ 14.)  But, as discussed above, the competent evidence before the Court shows that this spending did not actually happen.  Accordingly, the Court must find there is no triable issue remaining on damages.

Further, having to employ an attorney is not a form of compensable damages, outside of the unusual situation of insurance bad-faith cases (Brandt fees) or the tort of another doctrine — neither of which apply here.  (See Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1337-1338; Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 112.)

4th Cause of Action

The Court grants the motion for summary adjudication on the 4th cause of action for conversion.  As plead in the complaint, and as argued in the opposition papers, this claim stems from the Plaintiffs’ belief that an escrow advance of $972.32 was erroneously taken from them to buy unnecessary insurance.  (SAC ¶ 47, 46 and Opp. Brf. p. 6.)  The Court has addressed above that the evidence does not appear to support the allegation, and there is no triable issue shown on such use of funds.  As such, Defendant’s motion is granted.

5th Cause of Action


The Court grants the motion for summary adjudication of the 5th cause of action for violation of Civil Code section 1788.13.  As addressed above, there appears to be no competent evidence that an escrow advance was used to buy unnecessary insurance or that Defendant attempted to collect an advance on such a “faulty” premise.

In addition, there is no competent evidence that Defendant engaged in the violation set forth in ¶52 of the complaint.  (See §1788.13(h) and Armstrong Dec. ¶ 13 and evidentiary objections thereto).  Finally, for the reasons stated above, there appears to be no evidence of actual damages. (see Civ. Code §1788.30(a) and see the Opp. Brf. at 6:21 to 7:1.)

Motion for Summary Judgment:

In light of the Court granting summary adjudication as to all the pending causes of action in the Second Amended Complaint, the Motion for summary judgment is also granted.

Claim of Punitive Damages

In light of the above, the motion for summary adjudication of the claim for punitive damages is moot.

Defendant’s Evidentiary Objections

Overrule 1, 2, 4, 10 (see MF #7 and 10.)

Sustain 3 and 5 as to “credit my account”; sustain 6 and 7 as to “the funds were never credited to my account”;  sustain 8 and 9.