Judge: Armen Tamzarian, Case: 22STCV00417, Date: 2023-02-15 Tentative Ruling
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Case Number: 22STCV00417 Hearing Date: February 15, 2023 Dept: 52
Tentative Ruling:
Plaintiff Bank of the West moves for summary judgment of its
complaint against defendants D&C Global, Inc. (D&C), Cajun Buggies, LLC
(Cajun), and Xunhao Wang aka Denny Wang.
Plaintiff moves for summary adjudication of its first, second, third,
seventh, eighth, and 12th causes of action.
Plaintiff states it “will agree to dismiss the remaining causes of
action in the Complaint as a condition to the entry of summary judgment.” (Motion, p. 3.)
A plaintiff moving for summary judgment must prove each
element of each cause of action; once the plaintiff does so, the burden shifts
to the defendant to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 849.) The opposing
defendants “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.” (CCP § 437c(p)(1).)
Plaintiff’s first 11
causes of action seek to collect debts.
The first cause of action alleges defendant D&C breached an
agreement to repay a $300,000 commercial loan.
The second cause of action alleges D&C and Wang breached a commercial
card agreement. The third cause of
action alleges Wang personally guaranteed both debts. The seventh cause of action alleges defendant
Cajun breached a separate agreement to repay a $300,000 commercial loan. The eighth alleges Wang personally guaranteed
that loan. The fourth through sixth and
ninth through 11th causes of action allege common counts for the same debts
alleged in the other causes of action.
(See McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [rather
than “a specific cause of action,” a common count “is a simplified form of
pleading normally used to aver the existence of various forms of monetary
indebtedness”].)
Plaintiff’s 12th cause of action seeks claim and delivery of
collateral under security agreements with D&C and Cajun. The 13th through 15th causes of action are
alternative legal theories to acquire the same collateral as the 12th cause of
action.
1st, 2nd, 3rd, 7th, and 8th Causes of Action: Breaches of Contract
The undisputed facts establish plaintiff is entitled to
summary adjudication of the first, second, third, seventh, and eighth causes of
action. These causes of action allege defendants
breached: promissory notes to D&C and Cajun, the commercial card agreement
with D&C, and Wang’s personal guaranties.
Breach of contract requires: (1)
a contract; (2) plaintiff’s performance or excuse for nonperformance; (3)
defendant’s breach; and (4) resulting damages.
(Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
First, plaintiff presents undisputed evidence that the
parties entered each contract. Both
entities executed the promissory notes, business loan agreements, and security
agreements. (UMF Nos. 1-8 [D&C],
60-67 [Cajun].) D&C executed the
commercial card agreement. (UMF Nos.
32-35.) Wang signed personal guaranties
for each debt. (UMF Nos. 35, 47, 49, 51
[D&C], 90, 93 [Cajun].)
Second, plaintiff presents undisputed evidence that it
performed its obligations under each contract.
It provided the credit required under each agreement. (UMF Nos. 10-11 [D&C loan], 37-39
[D&C card], 69-70 [Cajun loan].)
Third, plaintiff presents undisputed evidence that defendants
breached each contract. Defendants
defaulted on each by failing to repay their debts. (UMF Nos. 20, 23 [D&C loan], 40-41
[D&C card], 78, 81 [Cajun loan].)
Fourth, plaintiff presents undisputed evidence of the resulting
damages. Plaintiff’s evidence
establishes the amount of the balance on each debt and the accrued
interest. (UMF Nos. 21, 24, 26, 53-55
[D&C loan], 37, 42, 56 [D&C card], 79, 82, 96 [Cajun loan].)
Defendants did not oppose this motion. All facts are undisputed.
12th Cause of Action: Claim and Delivery
The undisputed facts establish plaintiff is entitled to
summary adjudication of the 12th cause of action. Claim and delivery is a provisional remedy
for “a cause of action for recovery of specific personal property.” (Eleanor Licensing LLC v. Classic
Recreations LLC (2018) 21 Cal.App.5th 599, 612.) “ ‘California courts borrowed the statutory
title of the provisional remedy of “claim and delivery,” which gives immediate
possession pending trial, and the action is often called a “claim and delivery
action.” ’ ” (Ibid.) “ ‘[T]o sustain an action for the recovery of
specific personal property the plaintiff must have the right to immediate and
exclusive possession’ ” of the property, and the defendants must possess it “ ‘at
the time of the commencement of the action.’ ”
(Law v. Heiniger (1955) 132 Cal.App.2d Supp. 898, 899.)
The undisputed facts establish defendants possessed the
personal property at the time plaintiff brought this action. Plaintiff seeks to recover the personal
property specified as collateral in the security agreements with D&C and
Cajun. The collateral consists of the
business assets of each entity. (UMF
Nos. 7, 9, 29 [D&C], 66, 68, 87 [Cajun].)
Both security agreements provide lengthy descriptions of the collateral,
which amount to all personal property the entities own. (Collier Decl., Ex. 3, p. 1 [D&C], Ex.
12, p. 1 [Cajun].) Entities necessarily
possess their own property.
The undisputed facts also establish plaintiff is entitled to
immediate and exclusive possession of the collateral. The security agreements provide that, upon
default, “Lender may require [defendants] to deliver to Lender all or any
portion of the Collateral.” (Collier
Decl., Ex. 3, p. 3, Ex. 12, p. 3.) They
further provide that, “Lender shall have full power to sell, lease, transfer,
or otherwise deal with the Collateral or proceeds thereof in Lender’s own name
or that of [defendants].” (Ibid.)
As discussed above, plaintiff presents undisputed evidence that
defendants D&C Global, Inc. and Cajun Buggies, LLC defaulted on their business
loan agreements and commercial security agreements. Plaintiff is therefore entitled to immediate
and exclusive possession of the collateral specified in the security
agreements.
Disposition
The court hereby grants
summary adjudication for plaintiff Bank of the West on its first, second,
third, seventh, eighth, and 12th causes of action against defendants D&C
Global, Inc., Cajun Buggies, LLC, and Xunhao Wang aka Denny Wang.
On the first cause of
action, plaintiff is entitled to $329,308.72 in damages plus $75.00 interest
per day from November 2, 2022, against defendant D&C Global, Inc. On the second cause of action, plaintiff is
entitled to $19,916.17 in damages against D&C Global, Inc. On the third cause of action, plaintiff is
entitled to $349,224.89 in damages, plus $75.00 daily interest from November 2,
2022, against defendant Xunhao Wang aka Denny Wang. Defendants D&C Global, Inc. and Wang are
jointly and severally liable for these damages.
On the seventh and
eighth causes of action, plaintiff is entitled to $331,634.25 in damages plus
$96.67 daily interest from November 2, 2022, against defendants Cajun Buggies,
LLC and Xunhao Wang aka Denny Wang. Defendants
Cajun Buggies, LLC and Wang are jointly and severally liable for these damages.
Finally, on the 12th
cause of action, plaintiff is entitled to possession of the collateral
specified in the security agreements with D&C Global, Inc. and Cajun
Buggies, LLC. As a secured creditor,
plaintiff must use the collateral to satisfy D&C’s and Cajun’s obligations
under their respective business loan agreements and promissory notes. If the
proceeds of the sale of the collateral exceed the amount necessary to satisfy
plaintiff’s monetary judgment, plaintiff shall return the excess funds to the
defendant(s) who provided the collateral.
Upon dismissal of the remaining causes of action, plaintiff
will be entitled to summary judgment.
The court hereby sets an Order to Show Cause Re: Dismissal of
Remaining Causes of Action and Entry of Judgment for March 6, 2023, at 8:30
a.m. In accordance with this order, plaintiff
shall file any request for dismissal and a proposed judgment for the court’s
signature no later than February 27, 2023.
To recover costs and
attorney fees, plaintiff may file a memorandum of costs and a noticed motion
for attorney fees.