Judge: Salvatore Sirna, Case: 22PSCV00438, Date: 2023-04-10 Tentative Ruling

Case Number: 22PSCV00438    Hearing Date: April 10, 2023    Dept: G

Plaintiff KeyBank National Association’s Motion for Leave to Resubmit Motion for Summary Judgment

Respondent: Defendants JYuan Corp, James Yuan, and Golden Lion Transportation

TENTATIVE RULING

Plaintiff KeyBank National Association’s Motion for Leave to Resubmit Motion for Summary Judgment is DENIED.

BACKGROUND

This is a breach of contract action arising from a loan and security agreement. On October 22, 2014, Plaintiff KeyBank National Association entered into a written agreement with Defendant JYuan Corp. (Lion Express), doing business as Lion Express, in which Plaintiff agreed to provide $381,972.81 for Lion Express to purchase equipment. Lion Express agreed to make an initial payment of $395, sixty-three monthly payments of $4,639.39, and one final payment of $81,034.39. James Yuan (Yuan) and Golden Lion Transportation (Golden Lion) also executed personal guaranties to guaranty payment under the agreement. Plaintiff alleges Lion Express breached the agreement by failing to make monthly payments and now owes $63,060.40. On December 27, 2021, Plaintiff send demand letters to Lion Express, Yuan, and Golden Lion demanding payment.

On May 6, 2022, Plaintiff filed a complaint against Lion Express, Yuan, and Golden Lion (collectively, Defendants), alleging breach of written contract against each defendant.

On October 14, 2022, Plaintiff filed a motion for summary judgment. On February 28, 2023, the court denied Plaintiff’s motion.

On March 15, 2023, Plaintiff filed the present motion. A hearing on the motion is set for April 10. A post-mediation status conference is also set for October 12, with a final status conference on February 20, 2024, and a jury trial on March 5.

ANALYSIS

Plaintiff moves for leave to resubmit Plaintiff’s motion for summary judgment pursuant to Code of Civil Procedure section 1008, subdivision (b). For the following reasons, the court DENIES Plaintiff’s motion.

Pursuant to Code of Civil Procedure section 1008, subdivision (b), “A party who originally made an application for an order which was refused . . .  may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Emphasis added.)

In this case, Plaintiff failed to comply with Code of Civil Procedure section 1008 as Plaintiff’s motion is not supported by an affidavit that complies with the code. While Plaintiff included an updated declaration from Nancy Barnes “in support of Plaintiff’s motion for summary judgment,” the declaration does not meet the requirements of Code of Civil Procedure section 1008, subdivision (b) as it does not state “what new or different facts, circumstances, or law are claimed to be shown.”

Code of Civil Procedure section 437c(f)(2) similarly provides that “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Again, Plaintiff failed to comply with Code of Civil Procedure section 437c(f)(2) as Plaintiff’s motion is not supported by an affidavit that complies with the code as it fails to establish to the satisfaction of the court “newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Accordingly, Plaintiff’s motion is DENIED.

CONCLUSION

Based on the foregoing, the court DENIES Plaintiff’s motion for leave to submit a motion for summary judgment.