Judge: Stephen Morgan, Case: 22AVCV00376, Date: 2022-12-08 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

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Case Number: 22AVCV00376    Hearing Date: December 8, 2022    Dept: A14

Background

This is a breach of contract action. Plaintiff Logix Federal Credit Union (“Plaintiff”) alleges that on or about June 11, 2016, Defendant Eduardo Nungaray (“Defendant”) applied for a membership with Plaintiff and, subsequently, on or about August 23, 2016, applied for a credit card to be issued by Plaintiff so that Defendant may transfer account balances, purchase merchandise, and/or obtain cash advances. In consideration for a credit card and its benefits, Plaintiff alleges that Defendant agreed and promised to repay Plaintiff the sums advanced, plus interest. On or about the same date, Plaintiff approved the application and mailed Defendant a notice of approval and the terms and conditions for the credit card for which upon use of the credit card Defendant agreed to be bound by its terms and conditions and any modifications thereto. Plaintiff presents that on or about January 25, 2021, Defendant breached the agreement by failing to make payments to cure his credit card default.

On May 31, 2022, Plaintiff filed its Complaint alleging one cause of action for Breach of Contract.

On June 29, 2022, Plaintiff filed his Answer.

On September 15, 2022, Plaintiff filed this Motion for Summary Judgment.

No Opposition has been filed. “An opposition to the 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.” (Cal. Code Civ. Proc. § 437c(b)(2).) The hearing is set for December 08, 2022. 14 days preceding December 08, 2022 is Thursday, November 24, 2022. November 24, 2022 is Thanksgiving, an annual national holiday in the United States. “Unless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.” (Cal. Rules of Court, Rule 1.10(b).) Accordingly, an Opposition was due by November 28, 2022. Should an Opposition be filed, it is now untimely.

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Legal Standard

Standard for Summary Judgment – The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) Cal. Code Civ. Proc.¿§437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show 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.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal. App. 3d 367, 381-382.)¿ 

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As to each claim as framed by the complaint, the party moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

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Once the defendant has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿ 

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Discussion

Application – Plaintiff presents that it has proven the genuineness of the credit card agreement, its performance of the credit card agreement was fulfilled, Defendant breached the credit card agreement by failing to make payment and failing to cure the default, and the amount due. Plaintiff addresses each of Defendant’s affirmative defenses within his Answer and presents arguments as to why they do not apply to this action.

Plaintiff has attached copies in lieu of the original documents. California Evid. Code § 1551 allows the use of photographic copies where the original is destroyed or lost. Plaintiff has attached the accompanying declaration of Damarie DeBelius (“DeBelius”), Special Assets Operations Administrator, shows that the copy of the Credit Card Agreement is a true and correct copy of the original. (DeBelius Decl. ¶¶ 7-10.) The Court allows the use of copies in lieu of the originals.

To establish a right to judgment on a breach of contract claim, the plaintiff must provide sufficient evidence to establish that there is no material dispute as to (1) the existence of a contract, (2) plaintiff’s performance or excuse for non-performance, (3) defendant’s breach, and (4) resulting damage to plaintiff. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.) As to the first element, Plaintiff has satisfactorily established the existence of a contract, entered into by and between Plaintiff and Defendant on June 11, 2016 for a credit card. (Decl. of Debelius ¶ 5; Exh. B [unlabeled – pp. 20-24].). As to the second element, Plaintiff has performed its obligations by extending credit to Defendant. (Ibid.) As to the third element, Plaintiff has established that Defendant breached the agreements by and through Plaintiff’s custodian of records. (Decl. Debelius ¶¶ 11-13.) Finally, the last element of damages has been satisfied by demonstrating Defendant’s default on the credit card, including accrued interest. (Decl. of Debelius ¶¶ 12-15.)

As to Defendant’s affirmative defenses, Defendant alleges: (1) Failure to allege facts sufficient to constitute any cause of action; (2) Lacks Standing; (3) Doctrine of Estoppel; (4) Failure to mitigate damages; (5) Harm as a result of Plaintiff's own actions; (6) No entitlement to attorneys' fees; (7) Right of Offset; (8) Lacks Legal Capacity; (9) Statute of Frauds; (10) Doctrine of Laches; (11) Waiver; (12) Doctrine of Unclean Hands; (13) Negligence; and (14) Third Party. However, Plaintiff is the issuing party of the credit card and a party to the agreement, Plaintiff has established that it has performed its obligations, the affirmative defense of laches is an equitable defense and is “not available as an affirmative defense to a contract action for money damages[]” (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 619), no improper conduct has been shown for unclean hands, no third party caused Plaintiff’s damages, and there is a clause for attorney’s fees within the contract.

The Court notes California has its own laws regarding usury. Under the California Const., Article XV, the rate of interest upon the loan or forbearance of any money, goods, or things in action, or on accounts after demand, shall be 7% or 10% at most for any loan or

forbearance of any money, goods, or things in action, if the money, goods, or things in action are for use primarily for personal, family, or household purposes. Plaintiff charges an APR based on an Index Value plus a Margin. The California Supreme Court held that credit sales are distinguished from loans. (Boerner v. Colwell Co. (1978), 21 Cal.3d 37; Front Line Motor Cars v. Webb (2019), 35 Cal. App. 5th 153, 164 [distinguishing mortgage banking from credit sales].) A bona fide credit sale is not subject to the usury law because it does not involve a "loan" or "forbearance" of money or other things of value. (Boerner, supra, 21 Cal.3d 37 at 85.) As such, Plaintiff is not subject to the usury laws under California Const., Article X

Plaintiff has met its burden to show that no dispute of material fact or defense exists. The burden then shifts to the opposing party, Defendant.

Defendant does not present otherwise.

Accordingly, the Motion for Summary Judgment is GRANTED.

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Conclusion