Judge: Monica Bachner, Case: 21STCV16749, Date: 2023-02-09 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV16749    Hearing Date: February 9, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Hankey Capital, LLC’s unopposed motion for summary judgment is granted.

Plaintiff Hankey Capital, LLC (“Hankey”) (“Plaintiff”) moves unopposed for summary judgment against Defendants Brett C. Harrison (“Harrison”) and BCH Enterprises, LLC (“BCH”) (collectively, “Defendants”) on its complaint.  (Notice of Motion, pg. 2; C.C.P. §437c; Evid. Code §§451(e), (f); §§452(c), (d), (g), (h); §§453(a), (b); §454(a); §§455(a), (b).)

Request for Judicial Notice

Plaintiff’s 6/7/2022 request for judicial notice of the Certificate of Status as to BCH Enterprises LLC issued by the California Secretary of State is granted.  (P-RJN, Exh. F.)

Procedural Background

On May 4, 2021, Plaintiff filed its complaint in the instant action against Defendants alleging causes of action for (1) breach of contract, (2) money loaned, and (3) accounts stated, money had and received, arising from Defendant BCH’s alleged execution of a promissory note on its own behalf in which it borrowed $200,000.00 from Plaintiff, and as to which Defendant Harrison signed a personal guarantee securing the performance of Defendant BCH.  (See Complaint.)  On June 7, 2022, Plaintiff filed the instant motion.  Plaintiff filed a notice of non-opposition on January 20, 2023.

Summary of Allegations

Plaintiff it is a licensed finance lender.  (Complaint ¶7.)  Plaintiff alleges on or about January 30, 2019, Defendant BCH executed a promissory note (“Promissory Note”) on behalf of Defendant BCH in which it borrowed $200,000.00 from Plaintiff.  (Complaint ¶8; Exh. A.)  Plaintiff alleges Defendant Harrison concurrently signed a personal guarantee (“Guaranty”) securing the performance of Defendant BCH.  (Complaint ¶8; Exh. B.)  Plaintiff alleges Defendant failed to repay the loan pursuant to the terms of the operative Promissory Note, and Plaintiff demanded payment, which was ignored by Defendants.  (Complaint ¶9; Exh. C.) 

Legal Standard

Summary judgment may be granted where it is shown that the “action has no merit or there is no defense to the action or proceeding.”  (C.C.P. §437c(a).)  The court must determine from the evidence presented 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.  (C.C.P. §437c(c).)  A plaintiff has met its 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.” (C.C.P. §437(p)(1).)

There is a triable issue of material fact, if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  

Suspended Corporation

Plaintiff moves for summary judgment as to Defendant BCH on the grounds that it is a suspended corporation.  “A defendant's lack of capacity to defend may be challenged by a motion for summary judgment.”  (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial, §2:141 (The Rutter Group 2022).) Revenue and Taxation Code section 23302 provides in part that “[f]orfeiture ... of a taxpayer's powers, rights, and privileges pursuant to [s]ection 23301 ... shall occur and become effective only as expressly provided in this section.” (Rev. & Tax. Code, § 23302, subd. (a).) Forfeiture requires both prior notice to the taxpayer pursuant to Revenue and Taxation Code section 21020 and the FTB's transmittal of the taxpayer's name to the Secretary of State. (Id., § 23302, subds. (a)-(c).) “The certificate of the Secretary of State shall be prima facie evidence of the suspension or forfeiture.”  (Revenue and Taxation Code section 23302(c).)

Here, Plaintiff has provided evidence that Defendant BCH has been suspended.  (Undisputed Separate Statement of Fact [“USSF”] 14; Decl. of Lu, ¶ 4, Exh. F, Exh. G at 17:11-18:3.)  Accordingly, Plaintiff met its burden on summary judgment as to Defendant BCH to demonstrate there is no triable issue as to any material fact.

Breach of Contract (1st COA)

To state 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.)

 Plaintiff submitted evidence of the existence of a contract between Plaintiff and Defendants, namely the Promissory Note, by Defendant Harrison on behalf of Defendant BCH.  (Undisputed Separate Statement of Fact [“USSF”] 1; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19; Decl. of Leydiker ¶¶4, 7, Exh. A; Decl. of Hankey ¶3.)  Plaintiff submitted evidence that concurrent with the execution of the Promissory Note, Defendant Harrison executed the Guaranty securing performance of Defendant BCH under the Promissory Note.  (USSF 2; Decl. of Lu, Exh. G at 36:7-8, 49:5-50:1; Decl. of Leydiker ¶¶4, 8, Exh. B; Decl. of Hankey ¶4.)  Plaintiff submitted evidence of its performance under the note, which was to loan $200,000 to Defendant BCH.  (USSF 3; Decl. of Leydiker ¶¶4, 7, Exh. A; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19.)  Plaintiff submitted evidence that under the Note, Defendant BCH’s performance was to repay Plaintiff $200,000.00 on July 31, 2019, plus interest on the unpaid balance.  (USSF 4; Decl. of Leydiker ¶7, Exh. A; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19.)  Plaintiff submitted evidence that the terms of the Note provided an interest rate of 12%.  (USSF 5; Decl. of Leydiker ¶7, Exh. A.)  Plaintiff submitted evidence of Defendants’ breach demonstrating neither Defendant BCH nor Defendant Harrison paid the $200,000.00 or any interest thereon accrued since August 1, 2019, to Plaintiff.  (USSF 8, 9; Decl. of Lu ¶¶3, 5, Exhs. D, G at 15:4-18, 19:18-20:19, 40:15-21, 50:12-51:16; Decl. of Hankey ¶¶5, 7-8, Exh. E.)  Plaintiff submitted evidence of resulting damages, with the total amount due and owing under the Promissory Note, exclusive of attorneys’ fees and costs, of $298,086.78.  (USSF 12; Decl. of Hankey ¶¶8, 11, Exh. E.)  Plaintiff met its burden on summary judgment on the first cause of action to demonstrate there is no triable issue as to any material fact.

Money Lent and Accounts Stated (2nd COA)

The required elements of a common count claim 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.)   It may be assumed that the obligation and implied promise to reimburse the plaintiff arose when the money was “lent” to, or “paid, laid out, and expended” for the defendant.  (Moya v. Northrup (1970) 10 Cal.App.3d 276, 280; 4 Witkin, Cal. Proc. (5th ed. 2008) Pleading §564.)

Plaintiff submitted evidence of the existence of a contract between Plaintiff and Defendants, namely the Promissory Note, by Defendant Harrison on behalf of Defendant BCH.  (Undisputed Separate Statement of Fact [“USSF”] 1; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19; Decl. of Leydiker ¶¶4, 7, Exh. A; Decl. of Hankey ¶3.)  Plaintiff submitted evidence that concurrent with the execution of the Promissory Note, Defendant Harrison executed the Guaranty securing performance of Defendant BCH under the Promissory Note.  (USSF 2; Decl. of Lu, Exh. G at 36:7-8, 49:5-50:1; Decl. of Leydiker ¶¶4, 8, Exh. B; Decl. of Hankey ¶4.)  Plaintiff submitted evidence of its performance under the Promissory Note, which was to loan $200,000 to Defendant BCH.  (USSF 3; Decl. of Leydiker ¶¶4, 7, Exh. A; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19.)  Plaintiff submitted evidence that under the Note, Defendant BCH’s performance was to repay Plaintiff $200,000.00 on July 31, 2019, plus interest on the unpaid balance.  (USSF 4; Decl. of Leydiker ¶7, Exh. A; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19.)  Plaintiff submitted evidence of Defendants’ nonpayment of the $200,000.00 or any interest thereon accrued since August 1, 2019, to Plaintiff.  (USSF 8, 9; Decl. of Lu ¶¶3, 5, Exhs. D, G at 15:4-18, 19:18-20:19, 40:15-21, 50:12-51:16; Decl. of Hankey ¶¶5, 7-8, Exh. E.)  Plaintiff met its burden on summary judgment on the second cause of action to demonstrate there is no triable issue as to any material fact.

Money Had and Received (3rd COA)

The count for money had and received states in substance that 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. (See CACI 370; 4 Witkin, California Procedure (6th ed. 2021 §§561-562.)

Plaintiff submitted evidence of the existence of a contract between Plaintiff and Defendants, namely the Promissory Note, by Defendant Harrison on behalf of Defendant BCH.  (Undisputed Separate Statement of Fact [“USSF”] 1; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19; Decl. of Leydiker ¶¶4, 7, Exh. A; Decl. of Hankey ¶3.)  Plaintiff submitted evidence that concurrent with the execution of the Promissory Note, Defendant Harrison executed the Guaranty securing performance of Defendant BCH under the Promissory Note.  (USSF 2; Decl. of Lu, Exh. G at 36:7-8, 49:5-50:1; Decl. of Leydiker ¶¶4, 8, Exh. B; Decl. of Hankey ¶4.)  Plaintiff submitted evidence of its performance under the Promissory Note, which was to loan $200,000 to Defendant BCH.  (USSF 3; Decl. of Leydiker ¶¶4, 7, Exh. A; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19.)  Plaintiff submitted evidence that under the Note, Defendant BCH’s performance was to repay Plaintiff $200,000.00 on July 31, 2019, plus interest on the unpaid balance.  (USSF 4; Decl. of Leydiker ¶7, Exh. A; Decl. of Lu, Exh. G at 15:4-18, 19:18-20:19, 33:20-34:19.)  Plaintiff submitted evidence that the money from the Promissory Note was executed for the benefit of Plaintiff, specifically Plaintiff submitted evidence that on January 30, 2019, Defendant BCH executed a Deed of Trust, Security of Agreement, and Fixture Filing with Assignment of Rents on the real property commonly known as 1820 Tamarack Street, Thousand Oaks, California, where Plaintiff is the beneficiary, as well as on real property at 1463 Claridge Drive, Los Angeles, California, where Plaintiff is the beneficiary.  (USSF 6, 7; Decl. of Leydiker ¶¶6, 9, 10, Exhs. C-1, C-2.)  Plaintiff submitted evidence that Defendants have not paid the $200,000.00 or any interest thereon accrued since August 1, 2019, to Plaintiff.  (USSF 8, 9; Decl. of Lu ¶¶3, 5, Exhs. D, G at 15:4-18, 19:18-20:19, 40:15-21, 50:12-51:16; Decl. of Hankey ¶¶5, 7-8, Exh. E.)  Plaintiff met its burden on summary judgment on the third cause of action to demonstrate there is no triable issue as to any material fact.

Based on the foregoing, Plaintiff’s unopposed motion for summary judgment is granted.

Dated:  February _____, 2023

Hon. Monica Bachner

Judge of the Superior Court