Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV05610, Date: 2025-02-12 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV05610, Date: 2025-02-12 Tentative Ruling

Defendants Villagomez Enterprises, Inc. dba La Tostaderia aka La Tostaderia Seafood and Fernando C. Ibarra Villagomez (“Defendants”) request judicial notice of 12 orders relating to the COVID-19 pandemic. Defendants’ request is GRANTED pursuant to Evidence Code section 452, subdivisions (b) and (c).

The Court has not considered Plaintiff’s “Separate Statement of Undisputed Material Facts in Support of Plaintiff’s Motion for Summary Judgment” in support of its motion, as this document is a reply separate statement not authorized by statute, and Plaintiff failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including a reply separate statement].)

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).)

Plaintiff alleged in the complaint that Defendant Villagomez Enterprises, Inc. dba La Tostaderia aka La Tostaderia Seafood (“La Tostaderia”) entered into a Merchant Agreement with Plaintiff on September 29, 2021 to obtain a loan of $435,875.35, and La Tostaderia agreed to pay the loan in 156 weekly payments. (Compl. ¶¶ 5-7.) Defendant Fernando C. Ibarra Villagomez (“Villagomez”) also entered into a Guarantee of the Agreement, guratanteeing La Tostaderia’s obligations under the agreement. (Compl. ¶ 13.) Defendants have failed to pay, leaving a total sum of $442,236.69 due and owing to Plaintiff. (Compl. ¶¶ 10, 13, 18, 20.) In the present motion, Plaintiff moves for summary judgment as to its claims for breach of written agreement, breach of guarantee, money lent, indebtedness, unjust enrichment, and account stated. On December 26, 2024, Plaintiff voluntarily dismissed its fifth cause of action for unjust enrichment.

To establish a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The elements of cause of action for breach of guaranty are “1) there is a valid guaranty, 2) the borrower has defaulted, and 3) the guarantor failed to perform under the guaranty.” (Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486.) The required elements of a claim for money lent are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted.) “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.” (Leighton v. Forster (2017) 8 Cal.App.5th 467, 491.)

Plaintiff provides evidence that Villagomez, on behalf of La Tostaderia, executed and delivered a Merchant Credit Application to Plaintiff on September 29, 2021, requesting a financial loan, and La Tostaderia entered into a written agreement for a commercial loan with Plaintiff on that same date in the amount of $435,875.35. (Pl.’s UMF Nos. 1-2.) Pursuant to the terms of the Merchant Agreement, Defendants were to repay the amount of $566,637.96 in 156 weekly installments pursuant to Amendment C and Schedule C-1, which included the payment of principal and interest over the terms of the loan, commencing on October 6, 2021. (Pl.’s UMF No. 3.) Plaintiff performed as required under the agreement and funded the loan, and Plaintiff delivered the statements of accounts for the loan, which Defendants did not dispute. (Pl.’s UMF Nos. 4-7.) Defendants ceased making any payment towards the loan balance on October 1, 2023, and to date, Defendants have made only payments totaling $124,401.27, leaving the balance of $442,236.66 due and owing to Plaintiff under the terms of the agreement. (Pl.’s UMF Nos. 8-9.) Moreover, Villagomez entered into a Guaranty to personally guarantee La Tostaderia’s obligations under the agreement, and Villagomez has failed to make any payments owed by La Tostaderia to Plaintiff. (Pl.’s UMF Nos. 14, 19.) No further payments have been made by Defendants since September 8, 2023, and Defendants are in default. (Pl.’s UMF Nos. 10-11.)

This evidence allows Plaintiff to meets its burden of establishing that there is no triable issue of material fact as to Plaintiff’s claims for breach of written agreement, breach of guarantee, money lent, indebtedness, and account stated against Defendant. Defendants first oppose the motion by arguing that Plaintiff has provided no admissible evidence in support of its motion. The Court finds no basis to disregard this evidence. Defendants also argue that Plaintiff cannot show the amount of damages it has suffered, but it provides only a paragraph of boilerplate legal authority in support of this argument, followed by a conclusory statement that a triable issue of material fact exists, and the Court finds no basis to so conclude based on the evidence provided.

Defendants further contend that several affirmative defenses defeat Plaintiff’s motion; specifically, Defendants argue that COVID-19 related orders frustrated Defendants’ intention of operating a restaurant and made it impossible and impracticable to do so. Notably, Defendants’ contractual obligation was to pay Plaintiff the amount due under the loan agreement and guaranty, and “[n]othing about the pandemic or resulting closure orders” made Defendants’ “performance of its obligation to [Plaintiff] . . . impossible.” (SVAP III Poway Crossings, LLC v. Fitness International, LLC, supra, 87 Cal.App.5th at p. 893; see also Fitness International, LLC v. KB Salt Lake III, LLC (2023) 95 Cal.App.5th 1032, 1502 [party was not prevented from paying rent because of the COVID-19 pandemic where it conceded it had the funds to pay rent].) Even assuming the pandemic qualified as a force majeure event, Defendants must show that their performance was rendered extremely difficult, expensive, or would involve loss (West Pueblo Partners, LLC v. Stone Brewing Co., LLC (2023) 90 Cal.App.5th 1179, 1188) due to the pandemic, and there is no evidence so indicating.

Accordingly, Plaintiff ARF Financial, LLC. f/k/a Advance Restaurant Finance, LLC.’s Motion for Summary Judgment Pursuant to CCP 437c is GRANTED in the amount of $442,236.66. Plaintiff ARF Financial, LLC. f/k/a Advance Restaurant Finance, LLC. shall prepare, serve, and submit a proposed judgment as per statute. Plaintiff’s right to recover attorney fees shall be determined in a subsequent noticed motion for attorney fees.