Judge: Katherine Chilton, Case: 21STLC04851, Date: 2023-02-21 Tentative Ruling

Case Number: 21STLC04851    Hearing Date: February 21, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:   Plaintiff Valley National Bank

RESP. PARTY:         None

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE,

SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Valley National Bank’s Motion for Summary Judgment is GRANTED.  Plaintiff’s alternative motion for summary adjudication is MOOT.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300)             OK

[X] Correct Address (CCP 1013, 1013a)                                     OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))                     OK

OPPOSITION:          None filed as of February 15, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of February 15, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On June 30, 2021, Plaintiff Valley National Bank (“Plaintiff”) filed an action against Defendant Ronald Zamora (“Defendant”) for breach of contract and implied-in-fact contract.

On August 17, 2021, Defendant, in propria persona, filed an Answer to the Complaint.  On the same day, Defendant filed a Motion to Change Venue, which was denied.  (3-7-22 Minute Order.)

On September 14, 2022, Plaintiff filed a Motion for Summary Judgment, or in the alternative Summary Adjudication (“Motion”).  The Court denied Plaintiff’s Motion as it was served 50 days before the hearing and did not comply with Code of Civil Procedure § 437c(2), which requires moving papers to be served at least 75 days before the hearing on a motion for summary judgment.  (11-3-22 Minute Order.)

On December 6, 2022, the Court granted Plaintiff’s Motion to Continue Trial Date and continued trial to March 22, 2023, along with all motion and discovery cut-off dates.  (12-6-22 Minute Order.)

On December 7, 2022, Plaintiff filed the instant Motion for Summary Judgment, or in the alternative Summary Adjudication (“Motion”).  No opposition has been filed.

On December 13, 2022, Plaintiff filed an Ex Parte Application for an Order Allowing Plaintiff’s Motion for Summary Judgment to be Heard Less Than 30 Days from Trial.  On December 16, 2022, the Court granted Plaintiff’s Ex Parte Application.  (12-16-22 Minute Order.)

II.              Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law.  (Code Civ. Proc. § 437c(c).)  The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition.  (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.)  Thus, “the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.).  When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought.  (Code Civ. Proc., § 437c(p)(1).)  The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and the courts must construe the evidence in support of the opposing party, resolving any doubts in favor of the opposing party.  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639; Scalf, 128 Cal.App.4th at 1519; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden.  (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)  Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial.  (Code Civ. Proc. § 437c(p).)  The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)  Summary judgment must be granted “if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute.  (Code Civ. Proc., § 437c(f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)

III.            Discussion

Plaintiff seeks a court order granting summary judgment in its favor and against Defendant on the ground that Plaintiff has established the elements of its causes of action for breach of express contract and breach of implied-in-fact contract.  (Mot. pp. 1-2.)  Alternatively, Plaintiff seeks an order granting summary adjudication as to each of the two causes of action.  (Ibid.)

Plaintiff argues that there is undisputed evidence that Plaintiff and Defendant entered into an agreement, whether express or implied, Plaintiff provided Defendant with a loan, Defendant breached the agreement by failing to make monthly payments, and Plaintiff incurred damages as a result of Defendant’s breach.  (Ibid. at p. 2.)  There is no genuine dispute of material fact and Plaintiff’s Motion should be granted.  (Ibid.)

Plaintiff also states that the Court should “address the implied contract claim only if the Court finds there was no express contract between Valley and the Defendant because the express and implied contract claims are alternative theories to recover the same damages.”  (Ibid.)  If the Court finds the existence of an express contract, it should dismiss Plaintiff’s second cause of action without prejudice.  (Ibid.; Memorandum p. 2.)

“‘[T]he vital elements of a cause of action based on a contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration.  As to the basic elements, there is no difference between an express and an implied contract.”  (Pacific Bay Recovery Inc. v. California Physicians’ Services, Inc. (2017) 12 Cal.App.5th 200, 215.)  “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.)  “‘While an express contract is defined as one, the terms of which are stated in words (Civil Code, § 1620), an implied contract is an agreement, the existence and terms of which are manifested by conduct (Civ. Code, § 1621)…[B]oth types of contract are identical in that they require a meeting of minds or an agreement [citation]. Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established [citation].’ [Citation.]”  (Pacific Bay Recovery, supra, 12 Cal.App.5th at 215-16.)

“A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect. [Citations.]   In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]”  (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)  “The elements of a breach of oral contract are the same as those for breach of a written contract. [Citations.]”  (Stockton Mortgage, Inc. v. Tope (2014) 223 Cal.App.4th 437, 453.)

Plaintiff has submitted a declaration from Robert Przespolewski, division President and Chief Operation Officer of Agile Premium Finance, a division of Valley National Bank.  (Pzespolewski Decl. ¶ 3.)  Pzespolewski states that he is “familiar with all aspects of Agile’s operations, including the terms of the PFA, the process for approving and onboarding loans, and the handling of defaulted loans” and he has “personal knowledge of the contract at issue in this case.”  (Ibid. at ¶ 3.)  According to Pzespolewski, “Valley is a national banking association” and “[t]hrough its division Agile, Valley is active in the insurance premium financing industry.”  (Ibid. at ¶ 4.)  Thus, it provides commercial enterprises with loans to purchase insurance policies.  (Ibid.)  Defendant Zamora “operates a business that provides trucking services.”  (Ibid. at ¶ 5.)  Plaintiff and Defendant “entered into a Commercial Insurance Premium Finance Agreement and Disclosure Statement (“PFA”) effective as of April 1, 2020.”  (Ibid. at ¶ 8, Ex. 1.)  According to the PFA, Plaintiff provided Defendant with a loan of $22,360.00 so that Defendant could purchase an insurance policy.  (Ibid. at ¶ 8.)  Defendant, without the involvement of Plaintiff, selected Global Hawk Insurance Company (“Global Hawk”) for its insurance policy and paid the insurer using the funds issued by Plaintiff.  (Ibid. at ¶¶ 9, 11.)  According to the PFA, Plaintiff “is not ‘liable for any loss or damage to the Insured [Defendant Ronald Zamora.] or any person or company resulting from the cancellation of the financed policies….’ (Brackets added).”  (Ibid. at ¶ 10.)  Defendant agreed to repay the loan to Plaintiff, including the principal amount and finance charges, in the total of $23,636.52 in monthly payments of $2,626.28, in the span of nine months.  (Ibid. at ¶ 12.)  Plaintiff has performed all of its obligations under the PFA.  (Ibid. at ¶ 14.)

The PFA states that if Defendant “‘does not pay an installment when due’” then he has defaulted.  (Ibid. at ¶ 16.)  Defendant Zamora made one payment of $2,626.28 in May 2020 but did not make any subsequent payments, as shown in the Payment History and transaction receipt attached.  (Ibid. at ¶ 17, Ex. 2.)  Defendant did attempt to make a payment by e-check in June 2020; however, the check was declined due to insufficient funds in Defendant’s bank account.  (Ibid., Ex. 3.)  Given Defendant’s failure to make further payments, he is in default.  (Ibid. at ¶ 18.)  Plaintiff adds that “Defendant is not excused from paying its debt to Valley because the Global Hawk policy was cancelled” as the PFA states that Plaintiff is not liable for any cancellations of policies.  (Memorandum p. 2.)

As of August 15, 2022, Defendant owes $26,101.58 as follows: principal amount of $22,360.00 minus Defendant’s one-time payment of $2,626.28 plus interest of $6,367.86.  (Ibid. at ¶¶ 19-23.)  Interest is calculated at a rate of $13.5%, as set forth in the PFA ¶ 11, from April 1, 2020 (the commencement of the insurance policy) to August 15, 2022.  (Ibid. at ¶ 23.)  Plaintiff states that its request for interest has increased from the amount requested in the Complaint as interest has continued to accrue.  (Ibid. at ¶ 23.)  Plaintiff also states that it is entitled to “collection costs and expenses” as set forth in the PFA ¶ 8 and requests legal fees of $1,570.57 and costs of $477.25, for a total of $2,047.82.  (Ibid. at ¶ 25.)  Thus, the total amount of damages requested is $28,149.40, including $19,733.72 for the principal amount, $6,367.86 in interest, and $2,047.82 for collection costs.  (Ibid. at ¶ 26.)

            Defendant has not opposed Plaintiff’s Motion.

The Court finds that Plaintiff has shown that there is no genuine issue of material fact with regard to the breach of contract cause of action. The Court finds that Plaintiff’s evidence is sufficient to establish the existence of an express agreement between the parties whereby Plaintiff agreed to provide Defendant with a loan to pay for his insurance policy in exchange for Defendant’s agreement to make monthly installment payments.  Furthermore, the evidence demonstrates that Plaintiff performed its obligations by providing the loan, yet Defendant breached the agreement by defaulting on the payments, causing Plaintiff to incur damages.  Thus, Plaintiff has met its burden and is entitled to judgment on the first cause of action for breach of contract.

Given that the Court finds an express contract does exist, it dismisses Plaintiff’s claim for breach of implied-in-fact contract.

Plaintiff’s Motion for Summary Judgment is GRANTED, and its Motion for Summary Adjudication is, therefore, MOOT.

However, the Court notes that judgment will be entered as to damages in the amount of $26,062.82 only, which includes unpaid principal amount of $19,733.72 ($22,360 minus Defendant’s one-time payment of $2,626.28) and interest in the amount of $6,329.10.  The Court calculates interest based a rate of 13.5% per annum from April 1, 2020, to August 15, 2022, as requested by Plaintiff.  (Przespolewski Decl. ¶¶ 20-24.)  The Court finds that the per diem rate of $7.30 multiplied by 867 days results in $6,329.10 in interest, not $6,367.86.  Thus, Plaintiff is ordered to file a corrected Proposed Order.

Plaintiff also seeks attorney’s fees and costs.  (Ibid. at ¶ 25, see Eli Decl.)  The Court finds that whether Plaintiff is entitled to attorney’s fees and costs in this action is not a proper subject for this motion for summary judgment.  Rather, this is more appropriately brought on a separate motion for attorney’s fees and costs.  The Court thus declines to address whether Plaintiff is entitled to attorney’s fees and costs at this time.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Valley National Bank’s Motion for Summary Judgment is GRANTED.  Plaintiff’s alternative motion for summary adjudication is MOOT.

Moving party is ordered to give notice.