TENTATIVE RULING

Plaintiff Gulf Coast Bank & Trust Company’s Motion for Summary Adjudication is CONTINUED to a date to be determined. Plaintiff Gulf Coast Bank & Trust Company shall file a supplemental declaration authenticating its evidence. Plaintiff Gulf Coast Bank & Trust Company may also file a supplemental brief of no more than five (5) pages in length, which shall be limited solely as to the issue of authentication of its evidence. Defendants Gailani Dental Group, LLC and Dunia Gailani may file a supplemental responsive brief of no more than five (5) pages in length, which shall also be limited solely as to the issue of authentication of its evidence. No further briefing will be considered.

Plaintiff Gulf Coast Bank & Trust Company to give notice.

REASONING

Plaintiff Gulf Coast Bank & Trust Company, as successor-in-interest to Bank of America, N.A. (“Plaintiff”) moves for summary adjudication of the first cause of action for breach of written agreement and second cause of action for breach of guaranty on the grounds that Defendant Gailani Dental Group, LLC (“the LLC”) breached the subject agreement, and Dunia Gailani (“Gailani”) failed to meet her obligations pursuant to her personal guaranty. Defendants Gailani Dental Group, LLC and Dunia Gailani (“Defendants”) oppose the motion on the ground that Plaintiff does not provide evidence authenticated with personal knowledge, and Plaintiff sued the wrong party because the loan was issued to Dunia Gailani, DDS, Inc., the LLC did not sign the loan agreement, and Gailani guaranteed only the obligations of Dunia Gailani, DDS, Inc., not the LLC.

Request for Judicial Notice

Plaintiff requests judicial notice of the State of California Secretary of State Domestic Stock Corporation Certificate of Dissolution filed February 16, 2021. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452, subdivision (c).

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) 

“On a motion for summary judgment, 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.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment 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.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Evidentiary Objections

At the outset, the Court addresses Defendants’ objections to Plaintiff’s evidence on the ground that Joel Daste, an officer for Plaintiff, lacks personal knowledge related to this loan because Plaintiff had nothing to do with the loan at the time the relevant events occurred. All of the undisputed material facts provided by Plaintiff to support its motion are based on the declaration of Joel Daste, i.e., if Defendants’ objections are sustained, Plaintiff’s motion cannot be granted due to failure to provide evidence to support the motion.

Plaintiff argues that Daste is a qualified witness under Evidence Code section 1271 because he is familiar with the mode, manner, methods, and practices relating to the documents attached as exhibits to his declaration. Evidence Code section 1271 provides as follows:

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

Plaintiff relies on Unifund CCR, LLC v. Dear (2015) 243 Cal.App.4th Supp. 1, a case in which the appellate division of the Riverside County Superior Court concluded an adequate foundation had been laid for the admission of business records where the custodian of records “declared she was the authorized representative and custodian of records for plaintiff, and that all the records of defendant's indebtedness by the original creditor were kept in the ordinary routine course of business.” (Id. at p. 6.) In that case, the appellate division court noted that bank statements are admissible under the business records exception to the hearsay rule because “bank statements . . . are prepared daily and . . . they consist of debit and credit entries based on the deposits received, the checks written and the service charges to the account.” (Id. at p. 8.)

This case is distinguishable from Unifund CCR, LLC v. Dear, supra, 243 Cal.App.4th Supp. 1. Daste fails to provide any information about the source of the documents attached to his declaration, i.e., he does not show that the documents are computerized ledgers maintained by either Plaintiff or Bank of America, N.A., and the documents are different from credit card statements like those in Unifund CCR, LLC v. Dear, where the method of preparation can be inferred. (Id. at pp. 4, 11.) Daste states that Plaintiff maintains record on a computer system, and record of payments received are input to Plaintiff’s system (Mot., Daste Decl. ¶¶ 4-5), but this does not provide any information about Bank of America, N.A.’s method of maintain these records, the method cannot be inferred, and Plaintiff provides only a letter stating the amount owed (Mot., Daste Decl. ¶¶ 19, 21, Exs. 4, 5) without any evidence of the number of payments made on the account, the amount of past payments, the date of the last payment. Put simply, Daste has demonstrated personal knowledge that the documents are part of Plaintiff’s business records, but he has not established that the documents were a part of Bank of America, N.A.’s business records because he provides no evidence regarding the mode of preparation of other information indicating trustworthiness. (See Midland Funding LLC v. Romero (2016) 5 Cal.App.5th Supp. 1, 9 [assignee to a defaulted credit card account did not sufficiently authenticate documents maintained by prior creditor].)

Accordingly, Defendants’ objections are SUSTAINED in their entirety. The Court exercises its discretion to allow Plaintiff the opportunity to cure the defects with its evidence. Thus, Plaintiff Gulf Coast Bank & Trust Company’s Motion for Summary Adjudication is CONTINUED to a date to be determined. Plaintiff Gulf Coast Bank & Trust Company shall file a supplemental declaration authenticating its evidence. Plaintiff Gulf Coast Bank & Trust Company may also file a supplemental brief of no more than five (5) pages in length, which shall be limited solely as to the issue of authentication of its evidence. Defendants Gailani Dental Group, LLC and Dunia Gailani may file a supplemental responsive brief of no more than five (5) pages in length, which shall also be limited solely as to the issue of authentication of its evidence. No further briefing will be considered.