Judge: Richard Y. Lee, Case: 30-2020-01147658, Date: 2022-11-03 Tentative Ruling
Plaintiff Hanmi Bank, a California State Chartered Bank (“Plaintiff”) moves for summary adjudication as to the first cause of action for breach of lease agreement (contract) against Defendant White Knight Limousine, Inc. (“Defendant White Knight”) and fourth cause of action for breach of guaranty against Defendants Ted Liddell and Timothy Liddell pursuant to Code of Civil Procedure section 437c on the grounds that Defendants failed to satisfy their obligations under the applicable Lease Agreement and Guaranty.
“If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c, subd. (a)(2).)
“The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (Code Civ. Proc., § 437c, subd. (a)(3).)
Here, 75 days before November 3, 2022 is Saturday, August 20, 2022. When two court days are added for overnight service, the last day to notice the motion for summary judgment becomes Thursday, August 18, 2022. The notice of motion and motion for summary adjudication were timely filed on July 27, 2022.
Moreover, trial is scheduled for December 5, 2022 and 30 days before trial is Saturday, November 5, 2022. The hearing on the motion is Thursday, November 3, 2022, which is before the 30 days prior to trial. As such, Plaintiff complied with the notice and hearing timing requirements of section 437c.
Pursuant to Code of Civil Procedure section 437c(p)(1):
“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. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)
Breach of Contract against Defendant Eason Consulting, LLC
The elements of a breach of contract cause of action are: (1) a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff. (Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1545.) “A written instrument is presumptive evidence of a consideration.” (Civ. Code, § 1614.)
Here, Plaintiff produced a declaration and related exhibits that establish each element of Plaintiff’s breach of Lease Agreement claim against Defendant White Knight Limousine, Inc.
First, Plaintiff’s Vice President Bruce Yancey testified that on September 11, 2017, Ascentium Capital, LLC (Plaintiff’s assignor) and Defendant White Knight entered into a written Lease Agreement (“Agreement”) where in wherein Ascentium agreed to lease the purchase of a 2006 Preo Bus to Defendant White Knight. (ROA # 48, Declaration of Bruce Yancy (“Yancey Decl.”), ¶ 8, Ex. 1.) The Agreement provided that Plaintiff would lease equipment (2006 Preo Bus) to Defendant White Knight Limousine and, in exchange, Defendant White Knight Limousine was to make one monthly payment in the amount of $10,020 and 48 monthly payments in the amount of $2,255.68 each. (Id., ¶¶ 10 and 27, Ex. 7.) Thereafter, Ascentium assigned the Agreement and all rights, title, and interest thereunder to Plaintiff. (Id., ¶ 11.)
Second, Plaintiff’s Vice President Bruce Yancey testified that Plaintiff performed pursuant to the contract. (ROA # 48, Yancey Decl., ¶ 13.) As evidenced by Exhibits 3 and 7, the equipment was delivered to Defendant White Knight and Defendant White Knight made payments on the loan from November 13, 2017 to March 2, 2020. (ROA # 48, Yancey Decl., ¶ 11, Ex. 3 and ¶ 27, Ex. 7.)
Third, on April 1, 2020, Defendant White Knight failed to make the monthly payment due and owing under the Agreement. (ROA # 48, Yancey Decl., ¶ 14 and ¶ 27, Ex. 7.) Defendant White Knight failed to make any further payments and remains in default, despite Plaintiff’s demands for payment. (Ibid.) Pursuant to the terms of the Agreement, Plaintiff elected to the declare the entire unpaid balance immediately due and payable. (Id., ¶ 15.)
Fourth, Plaintiff suffered damages from Defendant’s breach. Defendant White Knight Limousine owes Plaintiff the remaining balance of $46,795.39 under the Lease Agreement. (ROA # 48, Yancey Decl., ¶ 15, 20, 25 and ¶ 27, Ex. 7.) Plaintiff also claims that it was damaged in the amount of $1,000 for the repossession fee and $550 for the transportation fee related to the repossession. (Id., ¶¶ 19, 20, 25, and 29.) Therefore, Plaintiff has suffered $46,795.39 in damages under the Lease Agreement, $1,000 in damages for the repossession fee, and $550 in damages for the transportation fee related to the repossession.
Defendant White Knight Limousine, Inc. did not oppose the motion and therefore did not carry its burden to show that a triable issue of one or more material facts exists as to the breach of contract cause of action or a defense thereto. Defendant’s failure to oppose the motion may be treated as an abandonment of its defenses to the issues raised in the moving papers. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)
As such, the Court GRANTS Plaintiff’s motion for summary adjudication as to the first cause of action for breach of the Lease Agreement against Defendant White Knight Limousine, Inc.
Breach of Guaranty against Mitchell Eason
The elements for a breach of guaranty cause of action are: (1) the guarantor guaranteed payment of a third party’s indebtedness; (2) the third party defaulted; (3) the guarantor was notified of the default and payment was demanded; and (4) the guarantor did not make payment. (Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546-1547.)
Here, Plaintiff established each element of its breach of guaranty cause of action against Defendants Timothy Littell and Ted Littell. First, on September 11, 2017, Defendants Timothy Littell and Ted Littell unconditionally agreed to guarantee in writing the “payment and performance when due of all of the obligations of the Lessee under the Lease and all related documents executed by the Lessee.” (ROA # 48, Yancey Decl., ¶ 8, Ex. 1.) Second, as established above, Defendant White Knight defaulted under the Agreement. Third, Plaintiff notified Defendants of the default and demanded payment in writing on August 20, 2020. (Id., ¶ 17, Ex. 4.) Last, no further payments have been made pursuant to the Agreement. (Id., ¶ 15.)
Defendants Timothy Littell and Ted Littell failed to submit any opposition papers and therefore did not carry their burden to show that a triable issue of one or more material facts exists as to the breach of guaranty cause of action or a defense thereto. The court considers Defendants’ defenses to the issues raised in the moving papers abandoned. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)
As such, the Court GRANTS Plaintiff’s motion for summary adjudication as to the fourth cause of action for breach of guaranty against Defendants Timothy Littell and Ted Littell.
Requests for Judicial Notice
Pursuant to Evidence Code section 452(d) and 453, the court GRANTS Plaintiff’s unopposed Request for Judicial Notice of Plaintiff’s First Amended Complaint and Defendants’ Joint Answer to the First Amended Complaint.
Conclusion
Plaintiff Hanmi Bank, a California State Chartered Bank’s unopposed Motion for Summary Adjudication as to the first cause of action for breach of contract against first cause of action for breach of lease agreement (contract) against Defendant White Knight Limousine, Inc. and fourth cause of action for breach of guaranty against Defendants Ted Liddell and Timothy Liddell is GRANTED in its entirety.
Prevailing party to give notice.