Judge: Lee W. Tsao, Case: 22NWCV00324, Date: 2023-05-25 Tentative Ruling

Case Number: 22NWCV00324    Hearing Date: August 3, 2023    Dept: C

JPMORGAN CHASE BANK, N.A., v. PRECISION DIAGNOSTIC IMAGING, INC.

CASE NO.: 22NWCV00324

HEARING:  08/03/23

#4

Plaintiff’s Motion for Summary Judgment is GRANTED. The Alternative Motion for Summary Adjudication is MOOT.

Moving Party to give notice.

On March 16, 2023 and then again on May 25, 2023, this Court CONTINUED Plaintiff’s Motion for Summary Judgment in order to provide Defendants an opportunity to address the Supplemental Declaration of Barbra J. Lopez filed on March 10, 2023 in conjunction with Plaintiff’s Reply.

All papers filed on or before July 27, 2023 have been read and considered. The Court issues a tentative ruling on the merits.

This collections action was filed on April 27, 2022 by  Plaintiff JPMORGAN CHASE BANK, N.A.s (“Plaintiff” or “Chase”) against Defendant PRECISION DIAGNOSTIC IMAGING INC. (“Defendant” or “PDII”).

The Complaint alleges the following relevant facts: “On or about November 17, 2010, PDII entered into a borrowing relationship with Chase by executing a U.S. Small Business Administration Note (the ‘Note’) in favor of Chase in the amount of $500,000.00 and Business Loan Agreement.” (Complaint ¶8.) “On or about November 17, 2010, Minh Ta executed a U.S. Small Business Administration Unconditional Guaranty (the ‘Minh Guaranty’), pursuant to which Minh Ta guaranteed PDII’s payment of the Note.” (Complaint ¶9.) “On or about November 17, 2010, Bernadette Carolipio-Ta executed a U.S. Small Business Administration Unconditional Guaranty (the ‘Bernadette Guaranty’), pursuant to which Bernadette Carolipio-Ta guaranteed PDII’s payment of the Note.” (Complaint ¶10.) “Chase has performed all obligations on its part to be performed under the terms of the Contract. [¶] PDII has defaulted under the terms of the Contract and there is no due, owing, and unpaid to Chase, despite demand therefor, the principal sum of $370,502.55 plus late fees and costs pursuant to the terms of the Contract.” (Complaint ¶¶12-13.) “Minh Ta and Bernadette Carolipio-Ta have each failed to cure the default of PDII on the Contract pursuant to their respective guarantees.” (Complaint ¶14.)

Plaintiff Chase asserts the following causes of action: (1) Breach of Contract; (2) Money Lent; and (3) Account Stated.

Plaintiff Chase now moves for summary judgment or alternatively, summary adjudication of each cause of action.

The elements of a cause of action for breach of contract are as follows: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage to plaintiff. (See Reichert v. General Ins. Co. (1968) 88 Cal.2d 822, 830.)

An action for money lent requires showing: (1) Defendants are indebted to Plaintiff in a certain sum; and (2) for money lent, paid or extended to, or for, the Defendants. (See Moya .v Northrup (1970) 10 Cal.App.3d 276, 280.)

“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; (3) a promise by the debtor, express or implied, to pay the amount due. [Citations.]” (Leighton v. Forster (2017) 8 Cal.App.5th 467, 491.)

Defendants entered into a borrowing relationship with Plaintiff on or about November 17, 2010. (Plaintiff’s SSUMF Nos. 1, 2, and 3.) Defendants Ta and Carolipio-Ta personally guaranteed repayment of the amounts loaned to Defendant PDII Group. (Id. Nos. 2-3.) Plaintiff extended a loan to the PDII, and PDII has failed to pay under the terms of the contract. PDII is now in default. (Id. No. 5.) Due to Defendants’ breach of contract, Plaintiff has been forced to incur damages as follows: $370,502.55 in principal damages, $1,286.23 in late fees and costs. (Id. No 7.)

Plaintiff Chase has fulfilled its initial burden of showing that no triable issue of material fact exists as to Plaintiff’s causes of action. The burden therefore shifts Defendants to establish a triable issue of material fact.

In Opposition, Defendants argue that Plaintiff Chase failed to perform all of its obligations under the Note by failing to provide Defendants with “invoices” after December 17, 2011, leaving Defendants unaware with amount they needed to pay. Defendants further argue that Chase accepted late and/or partial payments, thus constituting a waiver of Defendants’ default, and modified the terms of the Note in August 2019.

The Note states: “Borrower is in default under this Note if Borrower does not make a payment when due under this Note….” The Note further articulates the Lender’s Rights in the case of a default, which includes the right to “[r]equire immediate payment of all amounts owing under [the] Note.” (Lopez Decl., Ex. A.)

It is undisputed that Defendants defaulted on the loan in December 2011. Defendants attempt to argue a “waiver” of the default because Defendants made some payments after the Loan was sent to collections. However, Defendants proffer no evidence of a “modification” here, and Plaintiff Chase is not obligated to accept the late payments as a cure for the initial defaults. Moreover, the payments made after the Loan was sent to collections was ultimately subtracted from the principal amount Defendants owed. Importantly, the letter attached as Exhibit A to the Supplemental Supporting Declaration of Richard Radcliffe sent by Chase to PDII on August 22, 2019, is not a modification—it is a temporary payment plan (“TPP”). The TPP states: “This is a temporary payment plan and is not a modification of the loan. Once this plan expires, we can discuss the additional payment required under the loan, as detailed in the loan documents. [¶] You should not interpret anything in this letter as a waiver of any other term or condition of the loan agreement. (See Supp. Radcliffe Decl., ¶3, Ex. A.) Waiver may be implied through conduct manifesting an intention to waive. (Salton Community Services Dist. v. Southard (1967) 256 Cal. App. 2d 526, 532.)  No such conduct can be implied here—Chase expressly stated that the TPP should not be construed as a waiver of the terms of the loan agreement.

Defendants have not raised any triable issues of fact sufficient to warrant denial of the Motion. Summary judgment is GRANTED. The alternate Motion(s) for Summary Adjudication are rendered MOOT.

Defendants’ Evidentiary Objections to the Declaration of Barbra J. Lopez

Nos. 1-4. Overruled

Defendants’ Objections to the Separate Statement

Objections to the Separate Statement are somewhat misplaced, as the Statement itself is not the evidence, nor is Counsel’s characterization of the underlying evidence cited therein.

Defendants’ Evidentiary and Other Objections to the Supplemental Declaration of Barbra J. Lopez

Nos. 1-3. Overruled