Judge Cynthia A Freeland, Case 37-2023-00017566-CU-BC-NC 2024-02-23 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00017566-CU-BC-NC, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 22, 2024

02/23/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2023-00017566-CU-BC-NC REGIONS BANK VS. BEST OF TIMES, LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 11/08/2023

Plaintiff Regions Bank, an Alabama State Bank and successor by merger of Ascentium Capital, LLC ('Plaintiff')'s motion for summary judgment is granted.

Factual Background and Procedural History This is a breach of contract action involving certain equipment financing agreements and attendant personal guarantees. The undisputed evidence establishes that on April 20, 2021, Plaintiff and Defendant Best of Times, LLC ('Best of Times'), through Defendant Alexander Dinsmoor, entered into Equipment Finance Agreement No. 2600656 ('EFA No. 1') under which Plaintiff agreed to lend Best of Times funds to purchase a Kyocera copier and related equipment from Premiere Copier, Inc.

('Premiere'). See Plaintiff's Separate Statement of Undisputed Material Facts ('UMF'), ¶¶ 1, 12. Under the terms of EFA No. 1, Best of Times was to make 60 monthly payments of $1,916.47 until paid in full, with Plaintiff receiving a security interest in the equipment. Ibid., ¶¶ 2-3, 13-14. In connection with the loan evidencing EFA No. 1, Mr. Dinsmoor executed a Guaranty personally obligating himself to pay all sums owed by Best of Times to Plaintiff under EFA No. 1. Ibid., ¶¶ 5, 16.

On June 15, 2021, Plaintiff and Best of Times, through Mr. Dinsmoor, entered into Equipment Finance Agreement No. 2607654 ('EFA No. 2') under which Plaintiff agreed to lend Best of Times funds to purchase Kyocera copier equipment from Premiere. Ibid., ¶ 23. Under the terms of EFA No. 2, Best of Times was to make 48 monthly payments of $1,533.03 until paid in full, with Plaintiff receiving a security interest in the equipment. Ibid., ¶¶ 24-25. In connection with the loan evidencing EFA No. 2, Mr.

Dinsmoor executed a Delivery and Acceptance Certificate under which he acknowledged that all equipment subject to EFA No. 2 had been delivered to and received by Best of Times in a satisfactory condition. Ibid., ¶ 26. Mr. Dinsmoor also executed a Guaranty personally obligating himself to pay all sums owed by Best of Times to Plaintiff under EFA No. 2. Ibid., ¶¶ 29, 36.

In March 2023, Best of Times defaulted under the terms of EFA Nos. 1 and 2 by failing to make monthly payments when due. Ibid., ¶¶ 7, 18, 31, 38. Mr. Dinsmoor has failed and refused to make payments consistent with EFA Nos. 1 and 2 despite his obligations under the separate Guarantees to do so. Ibid., ¶¶ 8, 19, 32, 38.

On April 26, 2023, Plaintiff commenced this action by filing a Complaint against Best of Times and Mr.

Dinsmoor. See ROA No. 1. The Complaint alleges four separate breaches of contract: (1) breach of EFA No. 1 against Best of Times (first cause of action); (2) breach of Guaranty as to EFA No. 1 against Mr.

Dinsmoor (second cause of action); (3) breach of EFA No. 2 against Best of Times (third cause of Calendar No.: Event ID: TENTATIVE RULINGS

3048504 CASE NUMBER: CASE TITLE: REGIONS BANK VS. BEST OF TIMES, LLC [IMAGED] 37-2023-00017566-CU-BC-NC action); and (4) breach of Guaranty as to EFA No. 2 against Mr. Dinsmoor (fourth cause of action).

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

Plaintiff's motion for summary judgment as to the first, second, third, and fourth causes of action is granted. 'To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.' Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186.

The court finds that Plaintiff has met its initial burden of demonstrating entitlement to judgment as a matter of law as to the first, second, third, and fourth causes of action. The undisputed evidence demonstrates the existence of four contracts: (1) EFA No. 1; (2) Mr. Dinsmoor's Guaranty of Best of Times' obligations under EFA No. 1; (3) EFA No. 2; and (4) Mr. Dinsmoor's Guaranty of Best of Times' obligations under EFA No. 2. Plaintiff fully performed all conditions, covenants, and promises required of Plaintiff under the terms of EFA Nos. 1 and 2, Mr. Dinsmoor's Guarantees, and the documents executed in connection with those contracts. See Plaintiff's UMF, ¶¶ 6, 17, 30, 37. However, Best of Times breached EFA Nos. 1 and 2 by failing to make monthly payments when due. Mr. Dinsmoor, for his part, breached his separate Guarantees by failing to pay the amounts owed by Best of Times to Plaintiff under EFA Nos. 1 and 2. As a result of the foregoing contractual breaches, Plaintiff has been damaged in the total amount of $113,580.53 ($71,035.14 for EFA No. 1 and $42,545.39 for EFA No. 2), plus attorney's fees and costs of suit. Ibid., ¶¶ 9-11, 20-22, 33-35, 38-40.

The burden thus shifts to Defendants to provide evidence of a triable issue of material facts as to Plaintiff's causes of action or Defendants' affirmative defenses sufficient to defeat summary judgment.

By failing to oppose the motion, Defendants do not satisfy their burden. Indeed, Defendants' lack of opposition constitutes their concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B.

Accordingly, the court grants Plaintiff's motion for summary judgment as to the first, second, third, and fourth causes of action.

Conclusion In light of the foregoing, the court grants Plaintiff's motion for summary judgment. Plaintiff shall submit a proposed Judgment consistent with this ruling within ten (10) days of the hearing on this matter.

Calendar No.: Event ID: TENTATIVE RULINGS

3048504 CASE NUMBER: CASE TITLE: REGIONS BANK VS. BEST OF TIMES, LLC [IMAGED] 37-2023-00017566-CU-BC-NC This is the tentative ruling for the hearing at 1:30 p.m. on Friday, February 23, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of February 23, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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