Anonymously-Authored Memorandum Posted on Facebook Excluded as “At Least Double Hearsay”

Monet v. Bank of Am., N.A., 2015 Cal. App. Unpub. LEXIS 2638 (Cal. Ct. App. April 16, 2015):

Plaintiff Christopher Monet, individually and as trustee of the L & M Family Living Trust (hereafter jointly Monet), obtained a loan for $868,000 secured by a deed of trust on real property. Monet defaulted on his loan. After the property was sold at a foreclosure sale, Monet sued the mortgage lender, trustee, and other entities to set aside the foreclosure sale. The operative complaint contained seven causes of action that survived demurrer. These included causes of action: (1) to set aside the foreclosure sale, (2) for wrongful foreclosure, (3) to void or cancel the trustee's deed upon sale, (4) to quiet title, (5) for negligence, (6) for unfair business practices, and (7) for injunctive relief.

 Monet appeals from the trial court's grant of summary judgment. ***

 III.

Monet's Evidence We begin with an analysis of Monet's evidence in opposition to the motion for summary judgment. If the moving party meets its initial burden, the party opposing a motion for summary judgment must produce substantial responsive evidence showing some triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) An opposition that contains no evidence, but simply asserts a right to a jury trial on the issues in the case, is insufficient. (See e.g., Shepherd v. Jones (1982) 136 Cal.App.3d 1049, 1062.) The opposing party cannot controvert the moving party's showing with evidence that is "based on speculation, imagination, guess work, or mere possibilities." (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481.)

 The party opposing summary judgment [*21]  must produce admissible evidence raising a triable issue of material fact. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) "The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion." (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) In addition to admissible evidence, a summary judgment motion may be based on facts that the court must or may judicially notice under Evidence Code sections 451 and 452. (Code Civ. Proc., 437c, subd. (b)(1).)

 A. Declaration of Monet's Counsel.   

Monet did not file a declaration in opposition to the motion for summary judgment. Instead, he relied on the declaration of his counsel, Megan Dailey, and exhibits attached to his first amended complaint. Dailey's declaration attempts to introduce three documents into evidence: (1) the memorandum prepared by an unnamed source summarizing information obtained from Facebook, (2) an excerpt from a Form 8-K that Countrywide Financial Corporation filed with the SEC, and (3) a screenshot from an FDIC website. In her declaration, Dailey made little effort to authenticate the documents. She did not even declare [*22]  that the first two documents were true and correct copies of what they purport to be, although she did make such a declaration regarding the screenshot.

Dailey stated that the Form 8-K and the screenshot are judicially noticeable, but did not file a request for judicial notice or otherwise tell the court which provisions of the Evidence Code she was relying on in requesting judicial notice. (Rule 3.1350(e)(4) [request for judicial notice must be "separately stapled and titled" "request for judicial notice in opposition to [moving party's] motion for summary judgment . . ."; original italics].) " ' "Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter." ' " (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117, italics added.) The material Monet asked the court to judicially notice related to the 2008 merger between Countrywide and Bank of America, N.A. and the "2009 FDIC receivership of Countrywide assets." But those facts were not material or probative of anything related to the issues raised in the summary judgment motion, other than as background information. We [*23]  therefore need not analyze further whether the documents were judicially noticeable, and we will not consider those documents.

 The memorandum by an unnamed person about representations others made on Facebook is at least double hearsay. Dailey did not disclose who did the internet research or who authored the memorandum. And she made no effort to address the hearsay problem presented by this "evidence" or to demonstrate how it was otherwise admissible. It was therefore not properly before the trial court and will not be considered on appeal.

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