Alison E Chase vs Brian M Metcalf et al

Case Number

21CV02245

Case Type

Hearing Date / Time

Fri, 04/26/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For the reasons set forth herein, the motion of cross-defendant Alison Chase for summary adjudication of causes of action of the first amended cross-complaint of cross-complainant Brian Metcalf is denied in its entirety.

Background:

As discussed more fully below, these actions and cross-actions arise out of the ownership of real property located at 1790 Eucalyptus Hill Road, Santa Barbara (the Property) by plaintiff, cross-defendant, and cross-complainant Alison E. Chase and defendant, cross-complainant, and cross-defendant Brian M. Metcalf.

(1)       Procedural History

On June 7, 2021, Chase filed her original complaint in this action asserting a cause of action for partition sale of the Property.

On July 19, 2021, Metcalf filed his answer to the complaint, admitting and denying the allegations thereof and asserting 11 affirmative defenses. Concurrently with the filing of the answer, Metcalf filed his original cross-complaint asserting 10 causes of action against Chase.

On October 7, 2021, pursuant to the stipulation of the parties and the order of the court, Chase filed her first amended complaint, which added as a defendant Mortgage Capital Partners, Inc.

On October 15, 2021, Metcalf filed his first amended cross-complaint (FACC) asserting 10 causes of action against Chase: (1) constructive fraud; (2) fraud (misrepresentation); (3) negligence; (4) breach of contract; (5) promissory estoppel; (6) breach of fiduciary duty; (7) accounting; (8) declaratory relief; (9) unjust enrichment/ restitution; and (10) equitable indemnity.

On November 8, 2021, Metcalf filed his answer to Chase’s first amended complaint, admitting and denying allegations thereof and asserting 11 affirmative defenses.

On November 17, 2021, Chase filed a demurrer to the FACC.

On December 16, 2021, pursuant to the stipulation of the parties and the order of the court, Chase filed her second amended complaint (SAC). The second amended complaint corrects the defendant mortgage holder as defendant Pentagon Federal Credit Union, implicitly dismissing defendant Mortgage Capital Partners, Inc., the predecessor mortgage holder.

On January 21, 2022, Metcalf filed his answer to the SAC, admitting and denying allegations thereof and asserting 11 affirmative defenses.

On January 24, 2022, without leave of court, Metcalf filed a second amended cross-complaint.

On January 31, 2022, Metcalf filed an errata to his answer to the SAC.

On February 4, 2022, the court ordered Metcalf’s second amended cross-complaint stricken as filed without leave of court. The court also sustained the demurrer to the third (negligence) and tenth (equitable indemnity) causes of action of the FACC without leave to amend, but overruling the demurrer as to the remainder of the FACC.

On February 15, 2022, Chase filed her answer to the remainder of the FACC, admitting and denying allegations thereof and asserting 17 affirmative defenses. Chase concurrently filed a cross-complaint to the FACC (CxFACC). The CxFACC asserts eight causes of action against Metcalf: (1) breach of contract; (2) promissory estoppel; (3) fraud; (4) breach of fiduciary duty; (5) ouster; (6) conversion; (7) unjust enrichment; and (8) accounting.

On April 18, 2022, Metcalf filed his answer to the CxFACC, admitting and denying allegations thereof and asserting 14 affirmative defenses.

On November 29, 2022, Chase requested, and the court entered, dismissal as to defendant Pentagon Federal Credit Union.

On May 12, 2023, the court entered as it order a stipulation to seal portions of Chase’s to-be-filed motion for summary adjudication.

On July 13, 2023, Chase filed the instant motion for summary adjudication. By this motion Chase requests that the court adjudicate the first, second, fourth, fifth, sixth, and eighth causes of action of the FACC. As discussed below, the motion is opposed by Metcalf.

A trial confirmation conference is now set for July 19, 2024.

(2)       Allegations of FACC

Because “the pleadings determine the scope of relevant issues on a summary judgment motion” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74), it is useful to summarize the allegations of the FACC. The facts and supporting evidence presented in support of, and in opposition to, the motion are discussed in the context of the analysis, below.

Chase and Metcalf are parents to a minor daughter who was born in May 2017. (FACC, ¶ 6.) After their daughter’s birth, Chase and Metcalf discussed purchasing a home in the Santa Barbara area where they could live and raise their child together. (Ibid.) In these discussions, they agreed that any home they purchased would serve as a long-term family residence that was suitable to raise their daughter. (Ibid.) Given the high cost of living and housing prices in Santa Barbara, they also agreed that they would contribute equally to the costs and expenses associated with any home they purchased because it would likely require a substantial financial commitment with significant debt. (Ibid.)

In February 2018, Chase and Metcalf made an offer to purchase the Property at $1,640,000. (FACC, ¶ 8.) Before making the offer, Chase confirmed to Metcalf that the home was a suitable long-term residence for their child and that Chase would contribute equally to the costs and expenses related to the property. (FACC, ¶ 9.) After conducting inspections and accounting for repairs and other items, the parties later renegotiated the purchase price to $1,625,000. (FACC, ¶ 10.) The parties also received a mandatory zoning information report that identified several alleged zoning violations that would require immediate attention and expense. (Ibid.) After confirming that the parties would equally pay for the costs associated with the Property, the parties agreed to proceed with the purchase. (Ibid.)

In March 2018, the parties completed the purchase of the house. (FACC, ¶ 11.) Metcalf supplied over $200,000 (or approximately 60 percent) of the initial down payment, and also paid points to lower the interest rate on the mortgage due to Chase’s credit rating. (Ibid.) Notwithstanding Chase’s representations that she would pay her share of property-related costs, shortly after purchasing the house, she repeatedly declined to make equal, or in many cases any, contributions toward house expenses. (Ibid.)

Over the next few years, Metcalf paid half of each monthly mortgage payment until Chase abandoned the residence in March 2021 and stopped making any mortgage payments at all, which Metcalf the began to pay in full. (FACC, ¶ 12.) Metcalf has paid all or practically all property taxes, insurance, and zoning case costs with little or no contribution from Chase. (Ibid.)

In January 2021, at Chase’s prompting and request, Metcalf was induced to coordinate a refinancing of the mortgage that was completed in mid to late February 2021. (FACC, ¶ 15.) As part of the refinance, Metcalf paid various out of pocket expenses. (Ibid.) Metcalf and Chase also represented to the mortgage lender that, among other things, they would continue occupying the home as their principal residence for at least one year following the refinancing and continue paying the mortgage and related expenses for the Property. (Ibid.)

At the time Chase represented that she thought they were purchasing a family-friendly home and would make equal financial contributions toward the expenses of the property, Chase did not believe that the home was an appropriate family residence and did not intend to contribute equally. (FACC, ¶ 16.) Chase also falsely represented at that time of the refinancing that she would continue occupying the residence for at lease a year and pay the mortgage and other expenses for the Property. (Ibid.)

Metcalf first became aware of the falsehoods at the end of March 2021 before the first mortgage payment under the refinancing became due when Chase told Metcalf that she had been planning on leaving the home for some time, well before they had even initiated the refinancing process. (FACC, ¶ 18.)

Analysis:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“A … cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the …cross-defendant has met that burden, the burden shifts to the … cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The … cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

(1)       Methods of Obtaining Summary Adjudication

In stating the legal standards for granting summary adjudication in the moving papers, Chase conflates the manner in which Chase’s initial burden may be met: “A defendant may ‘point to the absence of evidence to support the plaintiffs’ case’ and may rely on ‘factually devoid discovery responses’ from the nonmoving party.” (Motion at p. 7, citing Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472 and Simmons v. Superior Court (2016) 7 Cal.App.5th 1113.)

“[A] moving defendant now has two means by which to shift the burden of proof under subdivision [(p)(2)] of section 437c to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action. [Citation.]” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

The cases cited by Chase focus on the method of obtaining summary adjudication by the absence of evidence:

“Under the current version of the summary judgment statute, a moving defendant need not support his motion with affirmative evidence negating an essential element of the responding party’s case. Instead, the moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff’s case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.” (Leslie G. v. Perry & Associates, supra, 43 Cal.App.4th at p. 482.)

“The defendant may make this showing by relying on the plaintiff’s ‘factually devoid discovery responses.’ [Citation.] If the defendant does not present sufficient evidence to meet its initial burden, the court must deny the summary adjudication motion.” (Simmons v. Superior Court, supra, 7 Cal.App.5th at p. 1124.)

As explained by the California Supreme Court in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar), the 1992 and 1993 amendments to Code of Civil Procedure section 437c partially, but not completely, aligned California summary judgment law with federal law:

“Neither does summary judgment law in this state any longer require a defendant moving for summary judgment to conclusively negate an element of the plaintiff’s cause of action. In this particular too, it now accords with federal law. All that the defendant need do is to ‘show[ ] that one or more elements of the cause of action ... cannot be established’ by the plaintiff. [Citation.] In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element—for example, himself prove not X. This is in line with the purpose of the 1992 and 1993 amendments, which was to liberalize the granting of motions for summary judgment. As Justice Chin stated in his concurring opinion in [Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317], ‘[g]iven the difficulty of proving a negative, ... a test’ requiring conclusive negation ‘is often impossibly high.’ [Citations.] The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion [citation].” (Aguilar, supra, 25 Cal.4th at pp. 853–854, fns. omitted.)

“Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support [ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But, as Fairbank v. Wunderman Cato Johnson (9th Cir.2000) 212 F.3d 528 concludes, the defendant must indeed present ‘evidence’: Whereas, under federal law, ‘pointing out through argument’ [citation] may be sufficient [citation], under state law, it is not.” (Aguilar, supra, 25 Cal.4th at pp. 854–855, fns. omitted.)

Throughout Chase’s motion, Chase uses phrasing such as, “Metcalf cannot adduce any evidence to support his allegations and cannot prove” elements of causes of action. (E.g., Motion, at pp. 7-8.) This phrasing makes it difficult to determine what precisely is the argument being made by Chase in support of her motion for summary adjudication, namely, whether Chase seeks to demonstrate that Metcalf cannot establish an essential element because Metcalf cannot produce evidence to support that element or whether Metcalf cannot establish an essential element because Chase produces evidence of the underlying facts showing that the element cannot be met.

Because of this distinction, Metcalf argues in opposition that Chase fails in her initial burden to show that Metcalf cannot prove element because Chase has failed to present evidence of Metcalf’s lack of present evidence and inability reasonably to obtain such evidence. (Opposition, at p. 12.) In support of this argument, Metcalf points out that Chase has not cited to Metcalf’s own discovery responses. (Ibid.) In reply, Chase asserts: “Inventing new law, Metcalf claims that summary adjudication is unavailable because Chase did not rely on Metcalf’s own, self-serving discovery responses. This bizarre argument is made at least three times in the Opposition.” (Reply, at p. 6, fn. 2.)

As the above discussion of Aguilar demonstrates, Metcalf’s argument is neither invented nor bizarre. Metcalf correctly points out that if Chase intends to rely upon the “cannot be proven” approach to summary adjudication, Chase must provide evidence in the first instance to show that Metcalf has no evidence, and cannot reasonably obtain evidence, to support one or more elements of the applicable cause of action. Mere argument by Chase is insufficient to shift the burden on this motion to Metcalf. Because Chase has not provided any evidence that Metcalf cannot prove an element based upon the absence of such evidence, Chase may only meet her burden under the traditional approach of negating (“disproving”) an essential element. Further analysis therefore addresses Chase’s burden on summary adjudication with this in mind.

Additionally, the moving separate statement is required to contain all material facts in support of the motion. (Code Civ. Proc., § 437c, subd. (b)(1); Cal. Rules of Court, rule 3.1350(d).) “ ‘Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.’ [Citation.] And if the separate statement does not contain all material facts on which the motion is based, the moving party has failed to meet its initial burden of production and is ‘not entitled to summary adjudication as a matter of law.’ [Citations.]” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1297.)

(2)       Fraud Claims

Metcalf’s second cause of action is for fraud. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).)

The separate statement facts in support of adjudication of the second cause of action may be summarized as follows (see following note on numbering): (Fact 1) The parties toured the Property before purchasing it. (Facts 2-5) The Property was inspected and needed identified repairs. (Facts 6-7) The parties purchased the Property. (Facts 8-9) Metcalf wanted family expenses to be equal or at least proportionate. (Facts 10-13) Chase paid half of mortgage payments, all of the utilities while she resided at the Property, at least one of the property tax bills, and many of the cleaning expenses. (Fact 14) Chase paid for most major childcare expenses. (Facts 15-23) The parties refinanced the loan for the Property. (Fact 24) After the refinance closed, Metcalf used the Property as his principal residence for over one year. (Fact 25) The refinance lowered the monthly mortgage payment. (Facts 26-28) The parties separated at the end of March 2021. (Fact 29) As of March 29, 2021, Chase offered to have Metcalf buy Chase out of the Property, sell it, or assume the mortgage payments on her own. (Facts 30-31) After Chase moved out of the Property, Metcalf communicated with the mortgage broker that Metcalf was handling the mortgage and that he had “problems with companion.” (Fact 32) The property was sold on September 12, 2022, for $2,567,000. (Note: For the first five adjudications, the first 32 separate statement facts are repeated identically for each. The court uses the first number used for reference to these facts.)

The FACC identifies as a misrepresentation upon which the second cause of action is based is that “prior to the home purchase in 2018, Chase represented to Metcalf that she would equally share in all expenses and costs related to the house.” (FACC, ¶¶ 36.) The separate statement facts do not include any fact stating or implying that Chase did not make such a statement to Metcalf, that the statement made was true (or thought to be true when made), or that Chase did not intend reliance by Metcalf.

Nonetheless, Chase argues that the alleged statements are statements of future intention that are not actionable as fraud generally. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 [“Statements or predictions regarding future events are deemed to be mere opinions which are not actionable.”].) However, “ ‘[p]romissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar, supra, 12 Cal.4th at p. 638.)

“In a promissory fraud action, ‘the essence of the fraud is the existence of an intent at the time of the promise not to perform it.’ [Citations.] The falsity of the promise and the knowledge of that falsity (scienter) are interconnected. [Citation.] A promise is only false if the promisor did not intend to perform the promise when it was made, i.e., had knowledge of its falsity.” (White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 359.)

“ ‘[S]omething more than nonperformance is required to prove the defendant’s intent not to perform his promise.’ [Citations.] To be sure, fraudulent intent must often be established by circumstantial evidence. Prosser, for example, cites cases in which fraudulent intent has been inferred from such circumstances as defendant’s insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform. [Citations.]” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.)

As noted above, Chase has not presented evidence that she did not make the promise alleged or that she intended to perform the promise she did make. Chase therefore fails to meet her initial burden on these elements. Moreover, even if Chase had met her burden, Metcalf has presented evidence from which, under the standards for summary adjudication, fraudulent intent can be inferred. In particular, Metcalf has presented evidence that Chase promptly failed to attempt performance and repeated the promise in advance of the refinance. (Metcalf decl., ¶¶ 12-13, 17.) Thus, Metcalf has demonstrated the existence of a triable issue of fact.

With respect to the issues of reliance and damages, Chase presents evidence some payments made by Chase and evidence that Metcalf accounted for all family expenses together and that such payments evened out. (Chase Separate Statement [CSS], facts 8, 9.) This evidence is subject to conflicting inferences and fails to show either that Metcalf did not rely upon the false promises or that Metcalf suffered no damage of any kind as a result of such reliance.

“ ‘Actual reliance occurs when a misrepresentation is “ ‘an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,’’ ’ and when, absent such representation, “ ‘he would not, in all reasonable probability, have entered into the contract or other transaction.’ ” [Citations.] “It is not ... necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentations be the sole or even the predominant or decisive factor in influencing his conduct.... It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.” ’ [Citation.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1256.)

To the extent that this evidence is sufficient to meet Chase’s initial burden on summary adjudication, this evidence is ambiguous on both issues of reliance and damages. In opposition, Metcalf presents evidence of actual, justifiable reliance and of damages from that reliance. (Metcalf decl., ¶¶ 14, 15, 17.) Under the standards for summary adjudication, Metcalf has demonstrated the existence of triable issues of fact.

Based on the foregoing, either Chase has failed to meet her initial burden on summary adjudication or Metcalf has presented evidence of triable issues of fact. In either or both cases, the motion for summary adjudication will be denied as to the adjudication of Metcalf’s second cause of action for fraud (summary adjudication issue 2).

Metcalf’s first cause of action is for constructive fraud. “Constructive fraud ‘is a unique species of fraud applicable only to a fiduciary or confidential relationship.’ [Citation.] ‘Constructive fraud “arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.” [Citation.] Actual reliance and causation of injury must be shown. [Citation.]’ [Citations.] ‘ “ ‘In its generic sense, constructive fraud comprises all acts, omissions and concealments involving a breach of legal or equitable duty, trust, or confidence, and resulting in damages to another. [Citations.] Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated—that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud.’ [Citation.]” ’ [Citations.] ‘[W]hether a fiduciary duty has been breached, and whether [conduct] constitutes constructive ... fraud, depends on the facts and circumstances of each case.’ [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131, internal quotation marks omitted.)

“The elements for the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Stokes v. Henson (1990) 217 Cal.App.3d 187, 197.) Chase presents no evidence that they were not in a fiduciary relationship. The remaining elements are addressed, for purposes of this motion, by the corresponding elements of the fraud claim. Thus, for the same reasons discussed above, the motion for summary adjudication of the first cause of action for constructive fraud (summary adjudication issue 1) will be denied.

Metcalf’s sixth cause of action is for breach of fiduciary duty. The elements of a cause of action for breach of fiduciary duty are: “the existence of a fiduciary relationship, its breach, and damage caused by the breach.” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 244.) The elements of this cause of action are addressed, for purposes of this motion, by the corresponding elements of the constructive fraud claim. Thus, for the same reasons discussed above, the motion for summary adjudication of the sixth cause of action for breach of fiduciary duty (summary adjudication issue 3) will be denied.

(3)       Contract Claims

Metcalf’s fourth cause of action is for breach of contract. “A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.)

The contract alleged in the FACC is the contract to share equally in the payment of mortgage, insurance, taxes, and expenses of home ownership. (FACC, ¶ 50.) In support of the motion, Chase relies upon the same separate statement facts as for the fraud cause of action. The aspect of the fraud claim discussed above is the fraud claim for promissory fraud based upon the alleged false promise of performance of the same contract that is the subject of the breach of contract cause of action. Chase makes essentially the same arguments in support of the summary adjudication of the breach of contract claim as for the fraud claim. (See Motion, at pp. 16-17.) For the same reasons as discussed above, either Chase has failed to meet her initial burden on summary adjudication or Metcalf has demonstrated the existence of triable issues of fact. In either or both cases, for the same reasons, the motion for summary adjudication will be denied as to the adjudication of Metcalf’s fourth cause of action for breach of contract (summary adjudication issue 4).

Metcalf’s fifth cause of action is for promissory estoppel. “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 Cal. (2005) 129 Cal.App.4th 887, 901.) The elements of this cause of action are addressed, for purposes of this motion, by the corresponding elements of the fraud and breach of contract claims. Thus, for the same reasons discussed above, the motion for summary adjudication of the fifth cause of action for promissory estoppel (summary adjudication issue 5) will be denied.

(4)       Declaratory Relief

Metcalf’s eighth cause of action is for declaratory relief. Metcalf alleges:

“An actual controversy has arisen and now exists between Cross-Complainant and Cross-Defendants in that Cross-Complainant contends his ownership interest in the Subject Property is more than Cross-Defendant claims, since he paid, contributed and spent more than Cross-Defendant’s share in the purchase of the house.” (FACC, ¶ 75.)

“Cross-Complainant desires a judicial determination of Cross-Complainants rights and duties as to these issues and seeks a declaration as to his rights regarding these issues. In particular, Cross-Complainant seeks a declaration that he has majority ownership interest in the Subject Property, and that if the court finds that the parties have equal ownership interest therein, Cross-Defendant be made to reimburse Cross-Complainant for the funds he spent for the property over above the expenses paid by Cross-Defendant.” (FACC, ¶ 76.)

Chase seeks summary adjudication of this cause of action on two grounds: (issue 6) title to the Property was held in the names of both parties as joint tenants, and there is no clear and convincing evidence to overcome the presumption of equal ownership; and (issue 7) the declaratory relief claim is barred by the doctrine of judicial estoppel. (Notice, at p. 2.)

“Summary judgment procedure includes declaratory relief actions ‘ “ ‘in a proper case.” ’ [Citation.] ‘ “ ‘[T]he propriety of the application of [summary judgment to] declaratory relief lies in the trial court’s function to render such a judgment when only legal issues are presented for its determination.’ ” [Citations.]’ [Citation.] When summary judgment is appropriate, the court should decree only that plaintiffs are not entitled to the declarations in their favor. [Citation.] Thus, in a declaratory relief action, the defendant’s burden is to establish the plaintiff is not entitled to a declaration in its favor. It may do this by establishing (1) the sought-after declaration is legally incorrect; (2) undisputed facts do not support the premise for the sought-after declaration; or (3) the issue is otherwise not one that is appropriate for declaratory relief.” (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1401–1402.)

In support of these requested adjudications, Chase relies upon two principal facts: (1) the recorded title to the Property (CSS, facts 161, 162); and (2) Metcalf’s successful response to Chase’s ex parte application resulting in an order requiring Chase to pay 50 percent of the mortgage payments pending the partition sale of the Property (CSS, facts 163-170).

Title to the Property is held as follows: “Alison E. Chase, a single woman and Brian M. Metcalf, a single man as joint tenants.” (Metcalf Response Separate Statement [MRSS], fact 162 [undisputed on this point].) “A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy ….” (Civ. Code, § 683, subd. (a).) Assuming without deciding that title establishes that Chase and Metcalf have equal ownership in the Property by virtue of the title, this determination would resolve only one part of the requested declaration, namely, that the parties had unequal ownership shares in the Property. The requested declaration is in the alternative, namely, that Chase has an obligation to reimburse Metcalf for his unequal payments in support of the Property.

The sale of the Property may or may not effectively moot the additional requested adjudication. (See Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 375.) However, there is no evidence presented by Chase that the sale of the Property must render the alternative declaratory relief unavailable or inappropriate. Summary adjudication cannot be made as to part of a cause of action, not completely disposing of the cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).) Consequently, Chase has not met her initial burden as to requested adjudication issue 6.

Requested adjudication issue 7, asserting judicial estoppel, also only addresses the issue of equality of ownership interest and does not address the alternative declaration that Chase has an obligation to reimburse Metcalf. This requested adjudication thus has the same problem as requested adjudication 6. Fundamentally, though, requested adjudication issue 7 misunderstands the nature of the court’s order.

“ ‘ “Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. [Citation.] Application of the doctrine is discretionary.” ’ [Citation.] The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986–987.)

“ ‘ “ ‘The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. [Citation.]’ ” ’ [Citation.] Consistent with these purposes, numerous decisions have made clear that judicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary.” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.)

Chase’s judicial estoppel argument is based an ex parte proceeding. On February 25, 2022, Chase filed an ex parte application for orders that Metcalf pay all expenses for the Property, including mortgage and property taxes, on the grounds that Metcalf had exclusive possession of the Property, that Metcalf had stopped paying expenses, and that Metcalf was in a better position to make those payments. (Chase decl., ¶ 26.) In opposition to the ex parte application, Metcalf argued that joint tenants have an equal and unrestricted right to use and occupy the entire property without paying rent, that Chase was not excluded from the Property, and that Metcalf was not in a position to make all of the payments. (Chase Exhibits, exhibit R.) Metcalf requested that the court order Chase to make her share of payments. (Ibid.) On February 28, the court heard the ex parte application and agreed with Metcalf that Chase’s request was not appropriate. (Minute Order, filed Feb. 28, 2022, at p. 1 [Chase Exhibits, exhibit 2].) At that hearing, the court entered the following orders, among others:

“The Court ordered that going forward, until the sale of the property, the parties shall share equally in the mortgage payments, the taxes, and any other expenses associated with the property subject to reimbursement at a later hearing.” (Ibid.)

“The Respondent is temporarily responsible for the back taxes due in 2021 (and to the extent that there are back taxes prior to 2021), but going forward they shall be shared equally by the parties until the sale of the property.” (Ibid.)

“Each side shall pay their half of the February mortgage by today (2/28/22), electronically, and provide proof to the other party that they have done so.” (Ibid.)

The fourth element of inconsistent positions is not met here. “Judicial estoppel is applied only against a party that has taken positions or made statements that are ‘totally inconsistent.’ [Citation, fn.] Put another way, the party must have taken positions that are so irreconcilable that … ‘one necessarily excludes the other.’ [Citations.]” (Bell v. Wells Fargo Bank, N.A. (1998) 62 Cal.App.4th 1382, 1387.)

Neither party here argues that Chase has no title interest in the Property. Chase asserts that she is a joint tenant with an equal ownership share. (E.g., Chase decl., ¶ 2.) Metcalf argues, among other things, alternatively that he should be reimbursed for payments made exceeding his half share of an equal ownership interest or that the ownership interest be deemed to be as tenants in common with unequal interests reflecting his payments. (E.g., FACC, ¶¶ 70, 76, 80.) The general rule “is that when one tenant in common has paid a debt or obligation for the benefit of the joint property, or has discharged a lien or assessment imposed upon it as a common burden, he is entitled as a matter of right to have his cotenant, who has received the benefit of it, refund to him his proportionate share of the amount paid.” (Willmon v. Koyer (1914) 168 Cal. 369, 374; accord, Conley v. Sharpe (1943) 58 Cal.App.2d 145, 155.) There are factual and accounting questions as to credits, on both sides, and as to the ultimate balance in favor of one side or another. However, those issues were not before the court at the time of the ex parte application (and are not now at issue). What was before the court was the issue of preservation of the Property as against default or waste. (See Code Civ. Proc., §§ 526, subd. (a), 872.130.) As the court’s February 28, 2022, order indicates, payments ordered were merely payments to preserve the status quo pending sale of the Property, subject to a later hearing for reimbursement or credit. Thus, the position taken by Metcalf in the ex parte application is not totally inconsistent with his alternative position of determining ownership shares as different from equal.

Even if the fourth element were determined to have been met here, as noted above, the application of judicial estoppel is discretionary with the court. Chase has not shown entitlement to a favorable declaration as a matter of law, and, correspondingly, the evidence presented by Chase demonstrates conflicting inferences as to whether the court would or should exercise its discretion. (See also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 85–86 [“ ‘Judicial estoppel is an extraordinary remedy that should be applied with caution. [Citation.]’ ”].)

For all of these reasons, the court will deny summary adjudication as to the eighth cause of action for declaratory relief (summary adjudication issues 6 and 7).

(5)       Evidentiary Matters

The court overrules Chase’s evidentiary objection Nos. 11, 12, 13, and 14. The court does not rule on the remaining objections. (See Code Civ. Proc., § 437c, subd. (q).)