Judge: Donald F. Gaffney, Case: "National Funding, Inc. v. Beige Cashmere", Date: 2023-06-14 Tentative Ruling
TENTATIVE RULING:
For the reasons set forth below, the unopposed Motion for Summary Judgment brought by Plaintiff National Funding, Inc. is GRANTED.
“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., §437c, subd. (a)(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 judgment as a matter of law.” (Code Civ. Proc., §437c, subd. (c).)
“A plaintiff or cross-complainant has met his or her 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 or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., §437c, subd. (p)(1).)
In this instance, Plaintiff seeks summary judgment as to its single claim for breach of contract. As noted by Plaintiff, “[t]he standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damages to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)
In support of this motion, Plaintiff offers the Declaration of Sandra Otero, the Chief Credit Officer of Plaintiff National Funding. (¶2 of Otero Declaration.) Ms. Otero declares that she is one of the custodian of records for National Funding. (¶2 of Otero Declaration.) Additionally, “[a]ny records regarding payments and adherence to settlement agreements are recorded and kept in the ordinary course of its business of financing and documenting payments on loan transactions.” (¶2 of Otero Declaration.) Ms. Otero also states that she is personally familiar with the manner in which Plaintiff’s records are prepared and maintained and that the same are “made at or near the time of the acts, conditions, or events indicated in the records.” (¶2 of Otero Declaration.)
Relevant to the existence of a contract, Ms. Otero states: “On or about June 8, 2022, Defendants BEIGE CASHMERE and KAWSER KAHN (collectively, ‘Defendants’) executed and delivered to National Funding a Settlement Agreement (the ‘Settlement Agreement’), whereby Defendants agreed to pay $46,800.00 to National Funding in exchange for a release of claims against them regarding the failure to repay sums due under a Purchase and Sale of Future Receivables Agreement dated August 12, 2021, Agreement No. FWC540036. Defendants were to make weekly installment payments every Monday until the $46,800.00 was paid in full.” (¶4 of Otero Declaration.) Attached as Exhibit 1 to the Declaration is a Settlement Agreement between National Funding, Inc. and Defendants Beige Cashmere and Kawser Kahn, dated June 8, 2022. (See Exhibit 1 to Otero Declaration.) The Agreement provides for payment of $46,800 by Defendants and bears electronic signatures for the same. (Exhibit 1 to Otero Declaration.)
Thereafter, Ms. Otero declares that “National Funding has performed all conditions and promises required to be performed on the its (sic) part under the terms of the Settlement Agreement.” (¶8 of Otero Declaration.)
Finally, Ms. Otero declares that Defendants defaulted under the agreement on August 1, 2022, by failing to make payment. (¶5 of Otero Declaration.) Similarly, Ms. Otero declares that Defendants paid $0.00 of the amount owed, such that the whole amount - $46,800.00 – remains owing. (¶5 and ¶7 of Otero Declaration.)
The above statements are sufficient to establish the existence of a contract, Plaintiff’s performance, breach and damages. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)
Notably, Defendants did not respond to this motion and did not object to the evidence offered by Plaintiff. “Evidentiary objections not made at the hearing shall be deemed waived.” (Code Civ. Proc., §437c, subd. (b)(5).) Additionally, given the lack of response, Defendants have not demonstrated the existence of a triable issue. (Code Civ. Proc., §437c, subd. (p)(1).)
Based on all of the above, Plaintiff has sufficiently established a breach of contract and entitlement to judgment against Defendants Beige Cashmere and Kawser Khan in the amount of $46,800. The Motion for Summary Judgment is granted.
Plaintiff to give notice.