Judge Mark A. Young, Case Number: 21SMCV01374, Date: 2023-10-17 Tentative Ruling

Judge: Mark A. Young, Case: 21SMCV01374, Date: 2023-10-17 Tentative Ruling

Case Number: 21SMCV01374 Hearing Date: October 17, 2023 Dept: M

CASE NAME: BMW Bank of North America v. David

CASE NO.: 21SMCV01374

MOTION: Motion for Summary Judgment/Adjudication

HEARING DATE: 10/17/2023

Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP, § 437c(t).)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP, § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).)

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)

Analysis

Plaintiffs BMW Bank of North America and BMW Financial Services NA LLC move for summary judgment, or in the alternative, summary adjudication, against defendant Svetlana David (“Defendant”) on the grounds that no dispute of material facts exists as to Plaintiff’s causes of actions for breach of contract and common count and Defendant has no defenses to each cause of action.

The elements for a breach of contract cause of action are: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) The elements of the common count for money had and received are 1) defendant’s indebtedness to plaintiff; 2) in a certain sum for goods or services. (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 792.)

The complaint alleges that on December 21, 2018, Defendant entered into a Simple Interest Vehicle Contract for Sale and Security Agreement (Agreement) for the purchase of a 2016 Dodge Challenger motor vehicle, Serial No. 2C3CDZC90GH325080 (Vehicle). (Compl., ¶ 6, Ex. 1.) Defendant agreed to pay for the purchase of the Vehicle, the total sum of $83,361.60, payable in 72 consecutive monthly installment payments of $1,157.80 each, commencing February 4, 2019, and monthly thereafter on the 4th day of each month, with the final payment due on January 4, 2025. (Id.) Interest was payable at the rate of 8.89% per annum. (Id.) Plaintiffs thereafter received by assignment from the Dealer, the Agreement, and Plaintiff’s lienholder interest was perfected with the California Department of Motor Vehicles. (Id., ¶ 7, Ex. 2.) On May 4, 2019, Defendant defaulted under the terms of the Agreement by failing to make the payment then due and owing. (Id., ¶8.) Due to Defendant’s payment default, Plaintiff has elected to accelerate all amounts owed and declare the entire unpaid balance immediately due and payable. (¶ 11.)

Plaintiffs fully evidence the allegations of the complaint. In December 2018, Defendant entered into a series of contracts for the purchase of certain motor vehicles, including a Mercedes motor vehicle, a Maserati motor vehicle, and a Lincoln motor vehicle. Thereafter, on December 21, 2018, Defendant entered into the subject Agreement for the Vehicle for the purchase of the Vehicle. Defendant testified that she purchased these vehicles for use by Alliance Auto Group, Inc. (“AAG”). (UMF 1-3.) She testified that AAG was to be a ridesharing business such as Uber or Lyft. (UMF 4-5.) In exchange for purchasing vehicles, AAG promised to pay $500 per month per vehicle to Defendant, and to cover the vehicles monthly payments. (Id.) Such a ride share agreement was in violation of the subject Agreement, which provides that “Unless [defendant] first have received our written consent . . . [defendant] may not sell, lease or otherwise dispose of the [Vehicle] or any part of it by any means” and “ . . .you will not allow any other security interest on the [Vehicle] besides the security interest granted to us under this contract.” (UMF 9.) At no time did Plaintiff provide Defendant with its written consent to sublease the Vehicle through AAG. (UMF 18.)

On May 4, 2019, Defendant defaulted under the Agreement by failing to make the required monthly payment. (UMF Nos. 15-19.) apparently, AAG did not pay as agreed. (UMF 17.) Defendant admitted during her deposition that she also never insured the subject Vehicle in violation of the terms of the Contract. (UMF 19.) Due to Defendant’s default, Plaintiff elected to accelerate all amounts owed and declared the entire unpaid balance immediately due and payable. (UMF 20.) Plaintiff has demanded payment from Defendant, but Defendant has failed and refused to pay the balance owing under the Contract. (UMF 21.)

In June 2021, Plaintiffs learned that on April 9, 2021, the Vehicle was retitled in Tennessee to an individual identified as “Robert Lee” with no lienholder. (UMF 23.) Plaintiff does not have any record in its possession reflecting that it released its legal and lienholder interest in the Vehicle at any time. (UMF 24.) Any release of Plaintiff’s legal and lienholder interest in the Vehicle in April 2021 in Tennessee was made without its knowledge, authorization, or consent. (UMF 25.) Plaintiff later learned that in January 2022 the Vehicle was further re-titled in Alabama to an individual identified as “Justin Gill” and “TD Bank NA” as the Vehicle’s “Legal Owner”. (UMF 26.)

Plaintiffs evidence the damages under the contract -- $88,139.25, which includes the outstanding principal balance of $62,816.36, plus interest up to and including December 31, 2020 in the amount of $9,286.89, plus collection fees of $100.00, late fees of $330.00, interest at the contractual rate of 8.89% on the remaining principal balance of $62,816.36, from January 1, 2021, through the hearing on this Motion, at the per diem rate of $15.30, for a period of 1,020 days in the total amount of $15,606, plus interest at the per diem rate of $15.30 from October 18, 2023 up to the date of entry of Judgment. (UMF 27-28.)

Plaintiffs therefore meet their initial burden of production as to both issues. Defendant has failed to oppose, and therefore fails to meet her burden to show a dispute of material fact.

Accordingly, Plaintiffs’ motion for summary judgment is GRANTED.