Judge: David B. Gelfound, Case: 23CHCV00845, Date: 2024-06-27 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
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Case Number: 23CHCV00845    Hearing Date: June 27, 2024    Dept: F49

Dept. F49 

Date: 6/27/24

Case Name: Kubota Credit

Corporation, USA, v.

Esmeralda Rubio-Acosta,

and Does 1-100

Case No. 23CHCV00845

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT

Motion filed: 3/20/24

MOVING PARTY: Plaintiff Kubota Credit Corporation, USA, (“Kubota” or “Plaintiff”)

RESPONDING PARTY: none

NOTICE: OK

RELIEF REQUESTED: An order granting Kubota’s Motion for Summary Judgment against Defendant Esmeralda Rubio-Acosta

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from alleged default in payment of a security agreement Defendant entered into for the purchase of a KUBOTA SVL65-2 (“Subject Vehicle”) and the subsequent refusal to surrender possession of the Subject Vehicle.

On March 23, 2023, Plaintiff filed the Complaint against Defendant Esmeralda Rubio-Acosta (“Defendant”) and Does 1 through 100, alleging (1) Possession of Personal Property, (2) Breach of Contract, (3) Good Sold and Delivered, (4) Book Account, and (5) Account Stated. Subsequently, Defendant filed an Answer to the Complaint on May 12, 2023.

On June 8, 2023, the Court granted Kubota’s Application for Writ of Possession filed on March 27, 2023. (2023/6/8 Minute Order.)

On February 2, 2024, the Court granted multiple discovery motions filed by Kubota: Motion to Compel Responses to Requests for Production, Motion to Compel Responses to Form Interrogatories, Motion to Compel Responses to Special Interrogatories, and Motion to Deem Request for Admissions Admitted, imposing monetary sanctions against Defendant in the amount of $3,840.00. (2024/2/2/ Minute Order.)

On March 20, 2024, Kubota filed the instant Motion for Summary Judgment (the “Motion”).

No Opposition or Reply papers have been received by the Court.

ANALYSIS

“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).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff's] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue.”' (Citation.)" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-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).) 

A.    Request for Judicial Notice

Kubota requests the Court take judicial notice of the following documents under Evidence Code section 452, subdivisions (c) and (d):

(1)   An Order Compelling Defendant Esmeralda Rubio-Acosta to Provide Responses to Form Interrogatories, Special Interrogatories, Request for Production of Documents, Deem Requests for Admission Admitted, and for Monetary Sanctions CCP § 2023.030;

(2)   Motion to Deem Admitted The Truth of the Matters Specified in the Request for

Admissions Set One; Request for Monetary Sanctions; Memorandum of Points and

Authorities; Declaration of Steven Ernest filed on October 18, 2023.

The Court GRANTS Plaintiff’s Request for Judicial Notice.

B.     Motion for Summary Judgment

1)      Cause of Action – Possession of Personal Property

The Complaint asserts a cause of action for possession of personal property.

Code of Civil Procedure sections 511.010 to 516.050 establish a provisional remedy that grants the plaintiff the right to immediate possession of the property involved in the action for specific recovery of the property without waiting for trial and judgment. (See American Machine & Foundry Co. v. Pitchess (1968) 262 Cal.App.2d 490, 493.)

The case records indicate that on March 27, 2023, Plaintiff filed an application for a writ of possession pursuant to the claim and delivery provisions in Code of Civil Procedure sections 511.010 to 516.050. The Court granted the application on June 8, 2023. (2023/6/8 Minute Order.)

Thus, there is no need for the Court to reconsider the provisional remedy which has already been afforded to Plaintiff.

2)      Cause of Action – Breach of Contract

The elements for a breach of contract cause of action include: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damage to plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830; Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387.)

The essential elements of a contract are: “(1) Parties capable of contracting; (2) Their consent; (3) A lawful object; and, (4) A sufficient cause or consideration.” (Civil Code, § 1550.) Only a signatory to the contract may be liable for any breach. (Clements v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 452.)

“[A] pleader must state with certainty the facts constituting a breach of contract.” (Melican v. Regents of Univ. of Cal. (2007) 151 Cal.App.4th 168, 174; Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4th 1, 5 [“Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.”])

General (direct) contract damages may be alleged with a bare statement of damage. Special (consequential) damages must be pled with particularity. (Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960.)

            Here, Plaintiff alleges that on March 11, 2021, Defendant and a nonparty dealer Diamond A Equipment, LLC entered into a typical written Retail Installment Sales Contract (“RISC”, or the “Contract”) for Defendant’s purchase of a KUBOTA SVL65-2. (UMF, p.2, No. 1, Steen Decl. ¶¶ 5-6.) The Contract is attached to the Complaint and included in the Motion’s Compendium of Exhibits (“COE”) Exhibit “A”, demonstrating that Diamond A Equipment, LLC assigned the RISC to Plaintiff “without recourse.” The assignment was executed concurrently with the Contract. (Steen Decl. Ex.”A.”) Furthermore, Plaintiff maintains that it is the present holder of the beneficial interest in the Contract (UMF, p. 2, No.2, RFA, No. 3), the authenticity of which is deemed admitted as the truth of the matter. (RFA, No. 2.)

            Moreover, Kubota asserts that Defendant defaulted on her obligation according to the Contract by failing to make the payment which came due October 2022, and each subsequent payment due. (UMF, p.3, No. 3, RFA, Nos. 1-2.)

            Furthermore, Kubota claims that the Contract contains a provision that stipulates Defendant to pay reasonable attorney’s fees and costs to Plaintiff should it prevail in any action on the Contract. (UMF, p. 4, No. 5, Tran Decl. ¶ 3.)

            Additionally, Kubota alleges that it has sustained damage of $38,462.73 for the balance on the Subject Vehicle (UMF, p.3, No. 4, Steen Decl. ¶ 10), as well as incurred attorney’s fees in the amount of $7,388.50 (UMF, p.4, No. 6, Steen Decl. ¶ 6), and costs in the amount of $578.52. (UMF, p.4, No. 7, Steen Decl. ¶ 7.)

Based on the above records, the Court finds that Kubota has satisfied its burden of establishing a prima facie showing that justifies a ruling in its favor for the breach of contract cause of action, the burden then shifts to Defendant to make a prima facie showing of the existence of a triable material factual issue. However, Defendant fails to file any opposition, thereby creating a waiver of the issues.

3)      Cause of Action – Good Sold and Delivered

The only essential allegations of a common count are: (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; Allen v. Powell (1967) 248 Cal.App.2d 502, 510; Johnson v. Dixon Farms Co. (1915) 29 Cal. App. 52, 53-55; see CACI 371.)

            Here, these elements are the same as alleged under the Breach of Contract cause of action. Plaintiff has alleged that Defendant became indebted to it for goods sold and delivered for which Defendant agreed to pay the sum of $58,445.00. (UMF, p.6, No. 3.)

Accordingly, the Court concludes that Plaintiff has met the burden of establishing a prima facie showing that justifies a ruling in its favor for this cause of action.

4)      Cause of Action – Book Account

To establish a cause of action for Open Book Account, the following elements must be satisfied: (1) plaintiff and defendant had financial transactions, (2) plaintiff kept an account of the debits and credits involved in the transactions, (3) defendant owes plaintiff money on the account, and (4) the amount of money that the defendant owes the plaintiff.  (State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal. App. 5th 422, 449.)  A book account is “open” if a balance remains due on this account.  (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.)

Here, the element for a financial transaction is established under the previous analysis for the existence of the Contract. Moreover, Plaintiff alleges that due to Defendant’s default on the Contract and after crediting the payments to Defendant’s account, there remains a balance of $38,462.73. (UMF, p. 9, No. 5.)

Accordingly, the Court concludes that Plaintiff has met the burden of establishing a prima facie showing that justifies a ruling in its favor for the cause of action for Book Account.

5)      Cause of Action – Account Stated

“The essential elements of an Account Stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; [and] (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600; see CACI 373.) 

Based on the analysis above, these elements are sufficiently alleged under the elements for the Breach of Contract claim and the cause of action for Book Account.

Therefore, the Court finds that Plaintiff has met its burden of demonstrating the existence of previous financial transactions between it and Defendant, the existence of an express written agreement, and a promise by Defendant to pay the amount due in installment payments.

Notably, Defendant has failed to file an Opposition, thereby creating a waiver of any issues raised in Plaintiff’s Motion for Summary Judgment. By waiving these issues and not setting forth any specific facts, the Court concludes that Defendant does not meet her burden of showing that a triable issue of material fact exists.

Based on the foregoing, the Court GRANTS the unopposed Motion for Summary Judgment.

CONCLUSION

The unopposed Motion for Summary Judgment is GRANTED.

Plaintiff’s Request for Judicial Notice is GRANTED.

Moving party to provide notice.