Mystica Fleury vs Byron Richard Tarnutzer et al

Case Number

22CV02886

Case Type

Hearing Date / Time

Fri, 12/12/2025 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For the reasons set forth herein, the motion of plaintiff Mystica Fleury for summary adjudication of the eighth cause of action of plaintiff’s third amended complaint is denied.

Background:

Defendant Byron Richard Tarnutzer (Tarnutzer) has known plaintiff Mystica Fleury (Fleury) for approximately 20 years. (Tarnutzer decl., ¶ 2.)

According to Tarnutzer, in late May 2020, he informed Fleury that he was working on a deal to purchase real property located at 546 Owen Road, Santa Barbara (the Property). (Tarnutzer decl., ¶ 3; Third Amended Complaint [TAC], ¶ 2.) Tarnutzer initially planned to remodel the Property into a spec home himself and resell it at a profit. (Tarnutzer decl., ¶ 3.) Fleury expressed interest in leasing or purchasing the Property and asked if she could purchase it instead. (Ibid.) Tarnutzer agreed and offered to negotiate the purchase of the Property on her behalf based on his belief that he could negotiate a purchase price for the Property that was significantly under market because of his long-time relationship with Nape Jenka’s, a 50 percent owner of the Property. (Ibid.) Fleury and Tarnutzer also orally agreed that Tarnutzer would assist her with developing and “flipping” the Property in exchange for a 50-50 split of the profits (i.e., net equity from the sale minus the $1.995 million purchase price Fleury paid and associated costs) from the sale of the Property. (Ibid.)

Tarnutzer initially agreed to assist Fleury through June 1, 2021. (Tarnutzer decl., ¶ 3.) In exchange for his services and efforts, Tarnutzer and Fleury entered into an oral agreement wherein Tarnutzer would receive a 50-50 split of the profits from the sale when the Property was resold. (Ibid.)

Tarnutzer engaged in lengthy negotiations with the seller that took place from May 2020 through late October 2020. (Tarnutzer decl., ¶ 4.) At the time Fleury purchased the Property, Fleury had both a survey and a professional home inspection completed at her own expense. (Ibid.)

Escrow closed in or around November 2020 for a purchase price of $1,955,000, which was significantly below market value for the neighborhood. (Tarnutzer decl., ¶ 5.) When Fleury purchased the Property, it was in need of a remodel caused by years of neglect. (Tarnutzer decl., ¶ 6.) Fleury and Tarnutzer agreed that they would clean up the Property to prepare it for her to reside in for a period of several years until she relocated. (Ibid.) Fleury agreed that any remodel would focus on maximizing the views which, in turn, would maximize the resale value of the Property. (Tarnutzer decl., ¶ 7.) Ultimately, Fleury, as the owner of record, decided to remodel the Property as an owner-builder to save on the costs of hiring and retaining a licensed general contractor. (Tarnutzer decl., ¶ 8.)

In March 2021 and May 2021, Tarnutzer borrowed a total of $1.7 million from Fleury as stated in a written promissory note. (Defendant’s Response Separate Statement [DSS], undisputed fact 1.)

Tarnutzer signed a promissory note (the Note) dated May 6, 2021, for the $1.7 million borrowed from Fleury. (DSS, undisputed fact 2.)

The Note states in part:

“FOR VALUE RECEIVED, Rick Tarnutzer, an individual, (‘Borrower’), promises to pay to Mystica Fleury, or order (‘Lender’), to the address as Lender may from time to time designate in writing, the principal sum of One Million Seven Hundred Fifty Thousand Dollars, plus interest (as provided below), pursuant to the provisions of this note (‘Note’).” (Fleury decl., ¶ 5 & exhibit 2 [Note, ¶ 1]; DSS, undisputed fact 2.)

“Interest shall accrue on the outstanding balance of this Note, from time to time, at the rate of five percent (5%) per annum during the entire term of this Note (the ‘Interest Rate’) which term shall commence on June 15, 2021, and terminate on June 30, 2024.” (Note, ¶ 2; DSS, undisputed fact 3.)

“Interest only paid monthly between 15th and last day of each month, unless otherwise agreed upon by the Parties.” (Note, ¶ 3.1.)

“This Note will be payable in full (‘Maturity Date’) on June 30, 2024, unless Borrower exercises a one time six month extension, or any other modification have been agreed upon during the course of such.” (Note, ¶ 3.2; DSS, undisputed fact 4.)

“The occurrence of any of the following shall constitute a default (‘Default’) by Borrower under this Note:

“(a)      Borrower’s failure to pay any payment under this Note within ninety (90) calendar days after the date of such payment, unless a modification has been made to such.

“(b)      Any repudiation by Borrower of any of Borrower’s Obligations under this Note.” (Note, ¶ 5.)

“The parties agree[ ] to keep all terms of this business arrangement, Promissory Note, and Personal Guarantee strictly confidential. The Parties further agree[ ] not to interfere in any business activities of one another.” (Note, ¶ 11.)

The Note does not contain an integration provision or a prohibition of oral modifications. (See Fleury decl., exhibit 2.)

According to Tarnutzer, it was always known and implied, and Fleury and Tarnutzer orally agreed, that the principal balance of the promissory note would not be due until the Property was sold. (Tarnutzer decl., ¶ 12.) When Tarnutzer and Fleury initially agreed that he would receive 50 percent of the net profit from the eventual resale of the Property, it was contemplated and understood that Fleury would reside in the Property for approximately three years, which is the same period as the Note term. (Ibid.) Once the Property was sold, Tarnutzer’s 50 percent share in the net profit from the sale of the Property would be first used to pay off the $1,750,000 loan. (Ibid.) Tarnutzer agreed that he would continue to assist her with the remodel of the Property until it was mostly completed, which is beyond his initial agreement to assist her with the remodel through June 1, 2021. (Ibid.)

From June 2021 through March 2022, Tarnutzer continually assisted Fleury with the remodel of the Property. (Tarnutzer decl., ¶ 19.)

On March 18, 2022, Tarnutzer sent an email to Fleury that made repeated references to splitting the profits upon sale of the Property. (Tarnutzer decl., ¶ 21 & exhibit 1.)

Tarnutzer’s last interest payment to Fleury was made in May 2022 and he ceased making payments in June 2022. (DSS, undisputed facts 5, 6.)

According to Tarnutzer, in May 2022 through June 2022, Tarnutzer received emails including attachments with a copy of an unfiled complaint. (Tarnutzer decl., ¶ 23.) Tarnutzer ceased making interest payments on the loan based upon his understanding that Fleury and her counsel indicated that the promissory note was no longer enforceable. (Tarnutzer decl., ¶ 24.)

Tarnutzer did not make the $1.7 million principal payment to Fleury by June 30, 2024, and the principal payment has never been made by Tarnutzer. (DSS, undisputed fact 7.)

Interest continues to accrue at 5 percent per annum on the principal at the rate of $7,291.67 per month. (DSS, undisputed fact 8.) The total amount owed to Fleury on the Note which includes principal and interest is $1,925,000.08. (DSS, undisputed fact 9.)

On July 26, 2022, Fleury filed her original complaint in this action asserting nine causes of action: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) violation of the contractors’ state license law; (4) negligence; (5) fraud; (6) unfair business practices; (7) rescission and restitution; (8) accounting; and (9) rescission of loan agreements and restitution. The original complaint includes the language from the unfiled complaint attached to the earlier emails that “Plaintiff intends service of the summons and complaint in this action to serve as notice of rescission of the aforesaid loan agreements ….” (Complaint, ¶ 78.)

On January 23, 2023, Fleury filed her first amended complaint asserting nine causes of action: (1) breach of contract—services; (2) breach of the covenant of good faith and fair dealing—services; (3) violation of the contractors’ state license law; (4) negligence; (5) concealment; (6) unfair business practices; (7) accounting; (8) breach of contract—loan agreement; and (9) false promise—loan agreement.

On August 24, 2023, Fleury filed her second amended complaint asserting the same nine causes of action as the first amended complaint.

On May 21, 2025, pursuant to stipulation of the parties and order of the court, Fleury filed her TAC. The TAC asserts 10 causes of action: (1) breach of contract—services; (2) breach of the covenant of good faith and fair dealing—services; (3) violation of the contractors’ state license law; (4) negligence; (5) concealment; (6) unfair business practices; (7) accounting; (8) breach of contract—loan agreement; (9) false promise—loan agreement; and (10) money had and received. (Note: In support of this motion, Fleury requests that the court take judicial notice of the TAC. The request is granted. (See Evid. Code, § 452, subd. (d)(1).) Judicial notice does not extend to the truth of factual matters set forth in court documents. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569.))

On June 20, 2025, Tarnutzer and defendant Vonna Carol Tarnutzer filed their answer to the TAC generally denying the allegations thereof and asserting 23 affirmative defenses.

On July 21, 2025, Fleury filed this motion for summary adjudication. Fleury seeks adjudication of her eighth cause of action for breach of contract.

The motion is opposed by Tarnutzer.

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 motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

“A plaintiff … has met that party’s burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff … has met that burden, the burden shifts to the defendant … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant … 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)(1).)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 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)       Plaintiff’s Initial Burden

Fleury’s eighth 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.)

In support of the motion, Fleury provides evidence of the existence of the contract, i.e., the Note, that Fleury performed by lending Tarnutzer money, that Tarnutzer breached the terms of the Note by failing to pay money when due, and that Fleury has suffered damage measured by the nonpayment in the total amount of $1,925,000.08. (DSS, undisputed facts 1-9.)

Fleury has met her initial burden on summary adjudication as to the eighth cause of action.

(2)       Defendant’s Burden

Because Fleury has met her initial burden on summary adjudication, the burden shifts to Tarnutzer to demonstrate the existence of a triable issue of fact. Tarnutzer does not challenge the existence of the loan, the signing of the Note, or Tarnutzer’s ultimate obligation to repay the loan with interest. However, Tarnutzer asserts that there is a triable issue of material fact as to the timing of payment which disputes the terms of the contract (the first element) and whether the terms have been breached (the third element).

The existence the dispute is seemingly straightforward. Tarnutzer declares: “Fleury and I orally agreed, that the principal balance of the promissory note would not be due until the Property was sold.” (Tarnutzer decl., ¶ 12.) Fleury declares: “Moreover, had [Tarnutzer] intended the maturity date of the Note to be when my home was sold, as he claims, he could have put that in the Note, which he drafted and signed. He did not and I never would have agreed had he done so because there was no such agreement.” (Fleury reply decl., ¶ 8.)

This direct dispute of material facts would ordinarily resolve the motion for summary adjudication without further discussion. However, Fleury argues that Tarnutzer’s declaration statements as to payment time should be disregarded because the statements contradict Tarnutzer’s responses to interrogatories, citing D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico).)

“ ‘Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (D’Amico, supra, 11 Cal.3d at p. 20.)

“[I]t is necessary to make some observations concerning the application of the foregoing rules in cases wherein the affidavits of a party incorporate by reference the fruits of its efforts under discovery procedures. It is clear beyond doubt that the consideration of such fruits on a motion for summary judgment is proper and wholly consistent with the intent and purposes of the summary judgment procedure. ‘When discovery properly used, makes it “perfectly plain that there is no substantial issue to be tried” [citation], section 437c, Code of Civil Procedure, is available for prompt disposition of the case.’ [Citations.]” (D’Amico, supra, 11 Cal.3d at pp. 20-21.)

“Moreover, when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation. Thus, in [King v. Andersen (1966) 242 Cal.App.2d 606], the rule providing for liberal construction of counteraffidavits was held not to require reversal of a summary judgment for defendants where the plaintiff in an assault case, although having stated in his counteraffidavit that unnecessary force was used, nevertheless had stated in a previous deposition that no force was used; refusing to find that a triable issue was thus presented, the court said: ‘Where, as here, however, there is a clear and unequivocal admission by the plaintiff, himself, in his deposition … we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.’ [Citation.]” (D’Amico, supra, 11 Cal.3d at p. 21.)

“The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts [citation] admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (D’Amico, supra, 11 Cal.3d at p. 22.)

Fleury in reply points to Tarnutzer’s responses to Judicial Council form interrogatory No. 50.1. Fleury does not provide the original discovery requests, but the interrogatories are provided as part of the responses. (Gross decl., ¶¶ 4, 5 & exhibits 3, 4.)

Form interrogatory No. 50.1 is:

“For each agreement alleged in the pleadings:

“(a)      identify each DOCUMENT that is part of the agreement and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT;

“(b)      state each part of the agreement not in writing; the name ADDRESS, and telephone number of each PERSON agreeing to that provision, and the date that part of the agreement was made;

“(c)      identify all DOCUMENTS that evidence any part of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT;

“(d)      identify all DOCUMENTS that are part of any modification to the agreement, and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT;

“(e)      state each modification not in writing, the date, and the name, ADDRESS and telephone number of each PERSON agreeing to the modification, and the date the modification was made;

“(f)       identify all DOCUMENTS that evidence any modification of the agreement not in writing and for each state the name, ADDRESS, and telephone number of each PERSON who has the DOCUMENT.” (Gross decl., exhibit 3 [vol. 1, p. 32, vol. 2, p. 2].)

The supplemental response to this interrogatory, served on April 18, 2025, subject to objection, is:

“(a)      Promissory Note dated May 6, 2021. A copy of that document is believed to be in the possession of all parties to this action. Discovery and investigation are continuing;

“(b)      None.

“(c)      None.

“(d)      None.

“(e)      None.

“(f)       None.” (Gross decl., exhibit 4 [vol. 2, pp. 2-3].)

Fleury argues that because the response to form interrogatory 50.1(e) asking about oral modifications is “none,” Tarnutzer’s contrary declaration testimony must not be considered. The analysis, however, is not as simple as suggested by Fleury.

As explained in stated Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133 (Ahn):

“The question presented here is whether plaintiffs’ initial and factually devoid responses to defendant’s ‘state all facts’ special interrogatories and requests for production—in which plaintiffs stated they did not know whether any facts or documents supported various allegations of their complaint—constituted clear and unequivocal admissions of fact which plaintiffs could not credibly contradict by Ahn’s declaration or other evidence adduced in opposition to the motion. In light of all of the evidence adduced on the motion, we conclude plaintiffs’ discovery responses fell well short of constituting clear and unequivocal admissions of fact which plaintiffs could not credibly contradict or amend in opposing the motion.

“To be sure, plaintiffs had a duty to answer the written discovery as completely and straightforwardly as the information available to them permitted [citations] and they failed to do so. But evasive answers to written discovery do not constitute a legally sufficient ground for granting a motion for summary judgment, particularly when other evidence adduced on the motion shows there are triable issues of material fact. Summary judgment is proper only if all the papers submitted on the motion show there are no genuine issues of material fact requiring a trial. [Citations.]

“[Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537 (Mason)] is analogous and instructive. The defendants, a clinical psychologist and a marriage, family, and child counselor, moved for summary judgment on the ground the plaintiff’s professional negligence claims against them were barred by the applicable three-year limitations period. [Citations.] In a previous interrogatory response, the plaintiff stated her injuries began occurring in September 1977, more than three years before she filed her complaint. [Citation.] But, in a declaration in opposition to the motion, the plaintiff explained that her previous response ‘was a mistake,’ and that September 1977 was actually the time her therapy with the defendants commenced. [Citation.] The plaintiff further explained that one of the defendants initiated a sexual relationship with her in 1983, and as a result she began suffering mental and emotional distress symptoms in 1986 and 1987, within the limitations period. [Citation.]

“The Mason court found the plaintiff’s explanation credible and reversed summary judgment in favor of the defendants. [Citation.] The court reasoned that if a trier of fact believed the sexual relationship began in 1983, as the plaintiff claimed in her declaration, the trier of fact could also reasonably conclude that the plaintiff’s initial interrogatory response stating that her injuries began occurring in September 1977 was ‘a simple mistake.’ [Citation.] The Mason court accordingly refused to disregard the plaintiff’s declaration explaining her prior interrogatory response under the D’Amico rule, reasoning it was not ‘free’ to disregard the explanation because a trier of fact could find it credible. [Citation.]

“Similarly here, plaintiffs’ counsel explained in an opposing declaration, and again at the hearing on defendants’ motion, that plaintiffs' initial discovery responses were a “mistake” made by a “new” and apparently unsupervised attorney employed by her law firm. In determining whether to disregard Ahn’s declaration under D’Amico, the question for the trial court was not whether the statements in the declaration were inconsistent with plaintiffs’ initial discovery responses. [Citation.] Rather, the question was whether, in light of all the evidence adduced on the motion, a reasonable trier of fact could conclude that plaintiffs’ initial discovery responses were a mistake and that the contradictory statements in Ahn’s declaration were credible. [Citations.]” (Ahn, supra, 223 Cal.App.4th at pp. 145–146.)

“At times, courts have stated the D’Amico rule in broad, summary terms which may be misconstrued as suggesting that prior discovery responses or purported admissions may be assessed in isolation and not in light of other evidence that credibly contradicts or explains them. [Citations.] Such summary statements of the D’Amico rule must not be misconstrued as allowing summary judgment to be granted based on what may appear, in isolation, to be clear and unequivocal admissions, when the purported admissions are credibly contradicted or explained by other credible evidence in the record, and all the evidence in the record shows there are triable issues of material fact.” (Ahn, supra, 223 Cal.App.4th at p. 147.)

In the moving papers, Fleury stated that Tarnutzer admitted that the Note is unambiguous and enforceable, and that no part of the agreement is not in writing and there are no modifications to the Note. (Motion, at p. 4, fn. 3.) Tarnutzer has not attempted to explain his response to form interrogatory No. 50.1 notwithstanding the discrepancy between those responses and Tarnutzer’s declaration testimony. At the same time, in the same set of interrogatory responses, dated April 18, 2025, in response to form interrogatory No. 17.1 (which Fleury cites in other parts), Tarnutzer states:

“(a)      8

“(b)      Plaintiff, Mystica Fleury; Responding Party. Discovery and investigation are None known at this time. Discovery and investigation are continuing. Plaintiff did not ask Responding Party for the return of money loaned to Responding Party. Further, the promissory note between Plaintiff and Responding Party has not yet matured. Discovery and investigation are continuing.” (Gross decl., exhibit 3 [vol. 1, p. 31].)

The last sentence is inconsistent with Tarnutzer’s response to form interrogatory No. 50.1: The date of the response (April 18, 2025) is long past the stated date in the Note (June 30, 2024). Consequently, the last sentence expresses Tarnutzer’s view that the maturity date was actually different than the specific date stated in the Note as subject to modification.

Additionally, Tarnutzer provides evidence of an email he sent in March 2022 which is partially consistent with Tarnutzer’s declaration by discussing splitting the profit from the sale of the Property. (Tarnutzer decl., ¶ 20 & exhibit 1.) Moreover, the terms of the Note expressly contemplate modification of timing of payment and reference a broader transaction. (Note, ¶¶ 3.2, 11.)

Taken together, the evidence shows that Tarnutzer’s declaration testimony is not a recent epiphany on the facts as Tarnutzer views them, but that the declaration is consistent with a previously held and maintained view of when the Note matured, i.e., when payment was due. The court must consider not only the response to form interrogatory No. 50.1, but the entirety of the evidence, including other responses to the same set of form interrogatories. In so doing, the isolated response to form interrogatory No. 50.1 is not an unequivocal admission under the rule of D’Amico. The court concludes that all of the evidence shows a triable issue of material fact as to the date payment on the Note is due.

Tarnutzer therefore meets his burden on summary adjudication to show a triable issue of material fact. This is a sufficient basis to deny the motion.

(3)       Other Issues

            (A)       Other Grounds For Summary Adjudication

In reply, Fleury argues that even if the court disregards the discovery responses denying an oral modification to the Note and if there was a modification of the maturity date, the undisputed facts nevertheless show Tarnutzer’s breach in failing to pay interest payments when due. As quoted above, the Note defines a default by Borrower as “Borrower’s failure to pay any payment under this Note within ninety (90) calendar days after the date of such payment, unless a modification has been made to such” and “Any repudiation by Borrower of any of Borrower’s Obligations under this Note.” (Note, ¶ 5.)

For purposes of this discussion, the court assumes without deciding that Tarnutzer’s evidence regarding why he stopped making interest payments is insufficient to excuse his timely payment of interest. Based upon this assumption, Tarnutzer’s failure to make timely payment of interest constitutes a “default” as defined by the Note. It is, however, ambiguous as to the effect of the “default” under the Note. The Note does not set forth any remedial provisions as a consequence of a “default.” Significantly, the Note does not include an acceleration clause stating that upon default the entire principal owed under the Note would immediately become due. In the absence of other evidence presented to the court on this issue, and also assuming for these purposes that the maturity date is, as Tarnutzer asserts, upon sale of the Property, it is more reasonable to construe a “default” in payment of interest to allow an action to recover the unpaid interest but not to accelerate the entirety of the principal of the Note.

Under this scenario with its assumptions, the undisputed facts would support adjudication of breach of contract as to the unpaid interest. However, Fleury’s eighth cause of action—and the summary adjudication requested in this motion—are for the entirety of the amounts owing under the Note, including both principal and interest. Such an adjudication would not resolve the entirety of a cause of action. (See Code Civ. Proc., § 437c, subd. (f)(1).) The motion cannot be granted in part.

            (B)       Continuance

In opposition to the motion, Tarnutzer also requests that the hearing on the motion be continued to permit discovery. Although the court questions why necessary discovery was not initiated as soon as the motion was served, because the court denies the motion as now presented, a continuance of the hearing is not necessary.

            (C)       Evidentiary Objections

In reply, Fleury makes a number of evidentiary objections. Evidentiary objections 10 and 18 are overruled to the extent of the Tarnutzer declaration testimony discussed herein. The court also notes that because the D’Amico rule is a rule relating to summary judgment procedure rather than evidence, testimony conflicting with interrogatory responses is not inadmissible as a matter of evidence. (Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604 [“Properly understood, D’Amico does not state a rule regarding the admissibility of evidence; instead, the case provides guidance in determining whether a declaration that contradicts prior discovery responses is sufficient to create a triable issue of fact.”].)