Judge: Mark E. Windham, Case: 21STLC04409, Date: 2022-08-03 Tentative Ruling
Case Number: 21STLC04409 Hearing Date: August 3, 2022 Dept: 26
MOTION
FOR SUMMARY JUDGMENT
(CCP §
437c)
TENTATIVE RULING:
Plaintiff Comerica Bank’s Motion
for Summary Judgment, or in the alternative, Summary Adjudication, is GRANTED.
PLAINTIFF TO FILE A PROPOSED
JUDGMENT WITHIN 10 DAYS OF THIS ORDER.
ANALYSIS:
Plaintiff Comerica
Bank (“Plaintiff”) brought this action for
breach of contract, breach of guarany, and common count for money lent against Defendants
MMD Entertainment, Inc. (“Defendant MMD”), A&L Entertainment, LLC (“Defendant
A&L”) and Lucy Keusseyan (“Defendant Keusseyan”) on June 10, 2021. Defendants filed an Answer on
January 11, 2022.
On May 10, 2022, Plaintiff filed the instant Motion for
Summary Judgment, or in the alternative, Summary Adjudication. No opposition
has been filed to date.
Discussion
The Complaint alleges causes
of action for (1) breach of contract against Defendant MMD; (2) breach of guaranty
against Defendant A&L; (3) breach of guaranty against Defendant Keusseyan;
and (4) money lent against all Defendants.
Allegations in the
Complaint
Plaintiff alleges that it and
Defendant MMD executed a revolving/installment note (“the Note”) in the
amount of $20,000.00 on February 26, 2016. (Compl., ¶8 and Exh. A.) The Note
had a maturity date of March 1, 2023. (Ibid.) On July 1, 2020, Defendant
MMD defaulted on the Note by failing to make payment on that date or going
forward. (Id. at ¶9.) As a result of Defendant MMD’s default, there
remains a balance due and owing to Plaintiff in the amount of $13,062.40
principal, $800.72 current interest, and $124.36 current late fees. (Id.
at ¶¶10-11.) Under the Note, Plaintiff is also entitled to recover its
attorney’s fees and costs. (Id. at ¶12.)
Also on February 26, 2016, Defendants A&L and Keusseyan
each executed agreements guaranteeing payment to Plaintiff of all existing and
future indebtedness of MMD (“Guaranty”). (Id. at ¶¶14, 20.) Defendants
A&L and Keusseyan have failed to pay Plaintiff as obligated in each
Guaranty. (Id. at ¶¶16, 22.) Therefore, Defendants A&L and Keusseyan
are also obligated to Plaintiff in the amount of $13,062.40 principal, $800.72
current interest, $124.36 current late fees, attorney’s fees and costs. (Id.
at ¶¶17-18, 23-24.)
Legal Standard
Plaintiff moves for summary judgment on the Complaint
pursuant to Code of Civil Procedure section 437c. On a motion for summary judgment
or adjudication of a particular cause of action, a moving plaintiff must show that
there is no defense by proving each element of the cause of action entitling
the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd.
(p)(1).) Then the burden shifts to the defendant to show that a triable issue
of one or more material facts exists as to that cause of action or a defense. (Code
Civ. Proc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the
Court must view the “evidence [citations] and such inferences [citations], in
the light most favorable to the opposing party.” (Intrieri v. Superior Court
(2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843].)
Plaintiff’s Initial Burden of Proof
The elements of a cause of action for breach of contract are
(1) the 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 for breach of guaranty are nearly
identical: (1) defendant guaranteed payment of the indebtedness of the primary
obligor to the plaintiff; (2) default on the indebtedness; (3) plaintiff
notified the guarantor of the default; and (4) the guarantor did not remit
funds to the plaintiff under the guaranty agreements. (Torrey Pines Bank v.
Sup. Ct. (1989) 216 Cal.App.3d 813, 819.) For a cause of action for money
lent, Plaintiff must show that Defendants are indebted to it in a certain sum
for money lent to them. (Moya v. Northrup (1970) 10 Cal. App. 3d 276,
280.)
In support of its Motion, Plaintiff presents the following
undisputed facts. On February 26, 2016, Defendant MMD executed the Note in
Plaintiff’s favor, in the amount of $20,000.00, in exchange for making
specified monthly payments. (Motion, Separate Statement, Fact No. 1; Martinez
Decl., ¶3 and Exh. A.) On the same date, Defendants A&L and Keusseyan each
executed a separate Guaranty of MMD’s future and existing obligation to
Plaintiff under the Note by agreeing to make payment when due. (Motion,
Separate Statement, Fact No. 2; Martinez Decl., ¶3 and Exhs. B-C.) Plaintiff has
performed all its obligations under the Note and remains the holder of the Note
and of each Guaranty. (Motion, Separate Statement, Fact No. 3; Martinez Decl.,
¶¶4-5.)
Defendant MMD defaulted on the Note by failing to make
payment due on February 1, 2021 and all payments thereafter. (Motion, Separate
Statement, Fact No. 4; Martinez Decl., ¶6 and Exh. D.) Defendants A&L and
Keusseyan also failed to pay Plaintiff on February 1, 2021, as obligated by each
Guaranty. (Motion, Separate Statement, Fact No. 4; Martinez Decl., ¶6 and Exh.
D.) As a result of these breaches, there is now due and owing from Defendants
to Plaintiff the principal balance of $13,062.40 (Motion, Separate Statement,
Fact. No. 5; Martinez Decl., ¶7 and Exh. E.) The Note provides a past-due
interest rate of 6.5 percent per annum, which is also due on the balance from
February 1, 2021. (Motion, Separate Statement, Fact No. 6; Martinez Decl., Exh.
A.) Interest from February 1, 2021 to May 4, 2022 totals $1,549.81. (Motion,
Separate Statement, Fact No. 7; Martinez Decl., ¶9 and Exhs. D-E.) Second, the
Note provides for a five percent late charge on each missed payment, which
amount to $379.79 as of May 4, 2022. (Motion, Separate Statement, Fact No. 8;
Martinez Decl., ¶10 and Exh. D.) Finally, Plaintiff is entitled to recover its
attorney’s fees and costs under the Note, which it incurred as a result of
Defendants’ breaches. (Motion, Separate Statement, Fact No. 9-10; Martinez
Decl., ¶¶11-12.)
This evidence carries
Plaintiff’s initial burden of proof as to its claim for breach of the Note
against Defendant MMD, breach of each Guaranty against Defendants A&L and
Keusseyan, and money lent against all Defendants. However, the Court notes a
discrepancy between the date of Defendants’ default as alleged in the Complaint
and as set forth in the evidence supporting the Motion. The Complaint alleges
the default occurred on July 1, 2020 but the Motion and supporting evidence
show the default occurred on February 1, 2021. (Compl., ¶¶9, 16, 22, 27;
Motion, Martinez Decl., Exh. D, p. 4.) Therefore, the Court amends the
Complaint to conform to the proof submitted in support of the Motion by
substituting February 1, 2021 for every instance of July 1, 2020 in the
Complaint. (See Trafton v. Youngblood (1968) 69 Cal.2d 17, 31 [citing McNamara
v. Steckman (1927) 202 Cal. 569, 572 [amendments to conform to proof have
been allowed with great liberality ‘and no abuse of discretion is shown unless
by permitting the amendment new and substantially different issues are introduced
in the case or the rights of the adverse party prejudiced.’]].)
Based on the foregoing, Plaintiff
has carried its burden of proof as to each cause of action in the Complaint.
The burden now shifts to Defendants to demonstrate that a triable issue of
material fact exists as to Plaintiff’s claims. As Defendants have not opposed
the instant Motion, however, they have failed to demonstrate the existence of
any triable issue of material fact.
Conclusion
Plaintiff Comerica Bank’s Motion
for Summary Judgment, or in the alternative, Summary Adjudication, is GRANTED.
PLAINTIFF IS TO FILE A PROPOSED
JUDGMENT WITHIN 10 DAYS OF THIS ORDER.
Moving party to give notice.