Judge: Michael C. Kelley, Case: 21AVCV00451, Date: 2022-09-29 Tentative Ruling

Case Number: 21AVCV00451    Hearing Date: September 29, 2022    Dept: A15

Background

This action for breach of contract was initiated by Plaintiff Financial Services Vehicle Trust, by and through its servicer BMW Financial Services NA, LLC, a Delaware limited liability company, as administered by its Rolls-Royce Motor Cars Financial Services Division (“Plaintiff”), against Defendants Antelope Valley Endocrinology aka Antelope Valley Endocrinology, Inc., (“Antelope Valley Endocrinology”) and Ashiq V. Patel aka Ashiq Patel (“Patel,” and collectively, “Defendants”). Plaintiff alleges that, on or about June 1, 2016, Defendants entered into a written Motor Vehicle Lease Agreement (the “Agreement”) to lease a 2016 Rolls Royce Dawn (the “Vehicle”). (Compl. ¶ 6.) Under the Agreement, Antelope Valley Endocrinology was responsible for making 60 monthly payments of $5,169.51, beginning on June 1, 2016 and ending on June 1, 2021. (Ibid.) Patel guaranteed the Agreement. (Id., ¶ 7.)

Plaintiff alleges that, on June 1, 2020, Defendants defaulted on the Agreement by failing to make the payment due on that date. (Compl. ¶ 9.)

Plaintiff filed the operative Complaint on June 2, 2021, alleging five causes of action for (1) breach of contract against Antelope Valley Endocrinology, (2) breach of guaranty against Patel, (3) money due against both defendants, (4) claim and delivery against both defendants, and (5) conversion against both defendants. Plaintiff also applied for a Writ of Possession of the Vehicle, which the Court granted. (Min. Ord., dated Aug. 24, 2021.)

On August 12, 2022, Plaintiff filed the instant Motion for Summary Judgment. On the afternoon before the hearing, Defendants filed an Opposition.

Analysis

Defendants’ Untimely Opposition-- An opposition to a motion for summary judgment “shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (Code Civ. Proc., § 437c, subd. (b)(2).) The court may, in its discretion, refuse to consider a late filed paper, as long as the minutes or order so indicate. (Cal. Rules of Court, rule 3.1300(d).)

The court may also continue a summary judgment hearing to permit further discovery “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented[.]” (Code Civ. Proc., § 437c, subd. (h).)

An opposing party's declaration in support of a motion to continue the summary judgment hearing should show the following: (1) “Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion”; (2) “The specific reasons why such evidence cannot be presented at the present time”; (3) “An estimate of the time necessary to obtain such evidence”; and (4) “The specific steps or procedures the opposing party intends to utilize to obtain such evidence.”

(Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 10:207.15, p. 10-83 (rev. # 1, 2011).) 

“It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated.” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) A supporting declaration must suggest precisely what facts might exist. (Ibid.) 

Here, Defendants filed an untimely opposition, in which they request a “30-60 day continuance of the MSJ to allow counsel for Defendant to once again reach out to Defendant for information in support of an Opposition.” (Defs.’ Opp’n Mot. Summ. Judg. at 2.) Apparently, Defendants’ attorneys have been unable to reach their clients. For this reason, they request a continuance, in the hopes that they will reach Defendants and obtain evidence for their defense.

Plaintiff vehemently protests this request for continuance, and indeed, the Court finds Defendants have not met the statutory requirements for a continuance to pursue further discovery. They have not submitted an affidavit or declaration. They also have not raised facts that establish a likelihood that controverting evidence may exist; in fact, since the record indicates that Patel has already been deposed, it is unlikely that Defendants could direct their counsel to new supportive evidence anyway—surely, Defendants’ attorneys would have learned of such evidence in preparation for, or at the deposition of their own client.

Therefore, Defendants’ request for a continuance is DENIED.

Requests for Judicial Notice—Under the Evidence Code, the court may take judicial notice of the “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code, § 452, subd. (c).) “Official acts include records, reports and orders of administrative agencies." (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)

Additionally, the court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) This may include “judicial notice of the existence of . . . Web sites, and blogs,” but the court “may not accept their contents as true.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193.)

Here, Plaintiff requests judicial notice of two documents. First, it requests judicial notice of a Certificate of Title depicting Plaintiff’s lien, and Antelope Valley Endocrinology’s ownership of the Vehicle. As this Certificate of Title was issued by the California Department of Motor Vehicles, it is a record of a state administrative agency and is therefore judicially noticeable as an official act of an executive department of a state of the United States.

Second, Plaintiff requests judicial notice of what it refers to as a “California Online Vehicle Report,” which appears to have been obtained from a website called “www.IMVRS.com.” The Court shall take judicial notice of the existence of this webpage, but not the truth of its contents.

Plaintiff’s requests for judicial notice are GRANTED.

Motion for Summary Judgment—A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  (Code Civ. Proc., § 437c, subd. (a).)

A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.

(Code Civ. Proc., § 437c, subd. (p)(1).) 

Here, Plaintiff moves for summary judgment on its Complaint as to all five causes of action.

First Cause of Action for Breach of Contract

To prevail on a cause of action for breach of contract, the plaintiff must establish: “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 830.) Plaintiff has done that here.

It submits undisputed evidence of the existence of a contract: a copy of the Agreement; Patel’s deposition testimony in which he acknowledged he signed the Agreement; and the sworn declaration of Sarah Phillips, the Collections Legal and Replevin Analyst for Plaintiff’s servicer, BMW Financial Services NA, in which Phillips attests that Plaintiff’s records reflect the Agreement. (Pl.’s Separate Statement No. 4; Pl.’s Ex. List Supp. Mot. Summ. Judg. at Exs. 1 & 2 [PDF pp. 3-8, 14-15]; Pl.’s Decl. Phillips Supp. Mot. Summ. Judg. ¶ 8.)

It submits undisputed evidence of its performance: according to the Agreement, Defendants received use of the Vehicle in exchange for making the monthly payments; in his deposition, Patel referred to leasing the Vehicle, and testifies to his belief that the Vehicle was delivered to his friend, Dr. Kain Kumar; according to the Certificate of Title, Antelope Valley Endocrinology was one of the registered owners of the Vehicle; and Phillips attests that Plaintiff “has performed all of the conditions, covenants and promises required under the terms of the Lease.” (Pl.’s Ex. List Supp. Mot. Summ. Judg. at Exs. 1, 2, & 4 [PDF pp. 3-8, 12, 20, 36]; Pl.’s Decl. Phillips Supp. Mot. Summ. Judg. ¶ 25.)

It submits undisputed evidence of Defendants’ breach: Phillips attests that Defendants defaulted on the lease by failing to make the June 1, 2020 payment. (Pl.’s Separate Statement No. 25; Pl.’s Decl. Phillips Supp. Mot. Summ. Judg. ¶ 22.) Patel, who is Antelope Valley Endocrinology’s corporate officer, also testified at his deposition that Dr. Kumar had originally promised to make all the payments, but, after Dr. Kumar was incarcerated, Patel became responsible for the payments; he then testified that he only made four payments, the last being made in May 2020. (Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 2 [PDF pp. 24, 27, 29.) Plaintiff also submits evidence that Defendants failed to maintain the requisite insurance, which, according to the Agreement, constitutes a breach. (Pl.’s Separate Statement No. 18; Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 2 [PDF p. 31].)

Finally, Plaintiff submits undisputed evidence of its damages: Phillips attests that Plaintiff has attempted to, but has been unsuccessful at repossessing the Vehicle, and that Defendants owe $270,435.48, plus interest at 10% per annum. (Pl.’s Separate Statement Nos. 26, 27, 32, 33; Pl.’s Decl. Phillips Supp. Mot. Summ. Judg. ¶¶ 23-24, 26; Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 5.)

In summary, Plaintiff has proved each element of this cause of action. As Defendants have not submitted any evidence, they have not shown a triable issue of material fact. Therefore, Plaintiff is entitled to summary adjudication of its cause of action for breach of contract.

Second Cause of Action for Breach of Guaranty

“A lender is entitled to judgment on a breach of guaranty claim based upon undisputed evidence that (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.) Plaintiff has submitted evidence of all three elements as to Patel.

First, Plaintiff submits evidence of the guaranty: Patel had signed the section of the Agreement entitled “19. GUARANTY.” (Pl.’s Separate Statement No. 40; Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 1 [PDF p. 4].)

It has submitted evidence that the borrower, Antelope Valley Endocrinology, has defaulted on the loan (discussed, supra, as to the first cause of action for breach of contract).

Lastly, it has submitted evidence that the guarantor, Patel, has failed to perform under the guaranty: Phillips attests that Plaintiff has demanded payment from both defendants, but Defendants, including Patel, have failed to pay the balance. (Pl.’s Separate Statement No. 69; Pl.’s Decl. Phillips Supp. Mot. Summ. Judg. ¶ 27.)

In summary, Plaintiff has proved each element of this cause of action. As Defendants have not submitted any evidence, they have not shown a triable issue of material fact. Therefore, Plaintiff is entitled to summary adjudication of its cause of action for breach of guaranty.

Third Cause of Action for Money Due

A cause of action for money lent need only allege indebtedness. "It was not necessary to state when the plaintiff paid, laid out, expended, loaned, or advanced to and for the defendant the moneys sued for, or when defendant became indebted to plaintiff therefor, or when defendant requested plaintiff to make such payments, expenditures, loans, or advancements. Nor was it necessary to set forth the items of the account (Pleasant v. Samuels (1896) 114 Cal. 34, 38.)

Here, Plaintiff submits evidence of the sole element of indebtedness: Phillips attests that Defendants owe a principal of $270,435.48, plus interest; and Plaintiff has submitted a copy of the payoff quote showing the same amount owed. (Pl.’s Separate Statement No. 104; Pl.’s Decl. Phillips Supp. Mot. Summ. Judg. ¶ 26; Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 5.)

Plaintiff has proved the only element for this cause of action. As Defendants have not submitted any evidence, they have not shown a triable issue of material fact. Therefore, Plaintiff is entitled to summary adjudication of its cause of action for money lent.

Fourth Cause of Action for Claim and Delivery

“Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment.” (Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271, italics added.)

“California’s Claim and Delivery Law (Code of Civ. Proc., §§ 511.010-516.050) authorizes the issuance of a pre-judgment writ of possession for specific personal property.” (Sea Rail Truckloads, Inc. v. Pullman, Inc. (1982) 131 Cal.App.3d 511, 514.)

Here, Plaintiff was already awarded prejudgment possession of the Vehicle, when the Court granted its Application for Writ of Possession on August 24, 2021. Claim and delivery is a provisional remedy and not a cause of action. Therefore, Plaintiff is not entitled to summary adjudication of this cause of action.

Fifth Cause of Action for Conversion

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial.

(Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.)

Here, Plaintiff’s cause of action for conversion is based on its allegation that Defendants apparently permitted Patel’s friend, Kumar, to sell the Vehicle to Floyd Mayweather.

Plaintiff submits evidence of its ownership and right to possession of the Vehicle: according to the section of the Agreement entitled “26. Default and Remedies,” were Defendants to default by failing to make a payment, Plaintiff would have the right to repossess the Vehicle. (Pl.’s Separate Statement No. 156; Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 1 [PDF p. 5].) Plaintiff has already established that Defendants defaulted. Therefore, Plaintiff has the right to repossess the Vehicle. Furthermore, Plaintiff is listed on the Certificate of Title as the Vehicle’s lien holder. (Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 4.)

Plaintiff submits evidence of Defendants’ wrongful disposition of the Vehicle: Plaintiff permitted Kumar to sell the Vehicle to Floyd Mayweather; Patel testified to this fact during his deposition. (Pl.’s Separate Statement No. 171; Pl.’s Ex. List Supp. Mot. Summ. Judg. at Ex. 2 [PDF p. 27].) Regardless of who precisely possesses the Vehicle at this time, the fact of the matter is that Plaintiff attempted to repossess the Vehicle from Defendants, yet was unsuccessful. (Pl.’s Decl. Phillips Supp. Mot. Summ. Judg. ¶¶ 23-24.) Because Plaintiff is not in possession of the Vehicle, despite Defendants’ contractual obligation to make the Vehicle available upon default, Defendants’ conduct has interfered with Plaintiff’s property right.

That Plaintiff has been unable to regain possession of the Vehicle is also evidence of Plaintiff’s damages.

Therefore, Plaintiff has proved its cause of action for conversion. As Defendants have not submitted any evidence, they have not raised a triable issue of material fact. Thus, Plaintiff is entitled to summary adjudication of this cause of action.

Conclusion