Judge: Virginia Keeny, Case: 21VECV00329, Date: 2023-04-27 Tentative Ruling

Case Number: 21VECV00329    Hearing Date: April 27, 2023    Dept: W

NPI DEBT FUND I, LP v. ROBERT BRARD, et al.

plaintiff npi debt fund i, lp’s motion for summary judgment

Date of Hearing:        April 27, 2023                                     Trial Date:       None set. 

Department:              W                                                        Case No.:        21VECV00329

Moving Party:            Plaintiff NPI Debt Fund I, LP

Responding Party:     Defendant Steve Kott and Robert Brard

BACKGROUND

Plaintiff NPI Debt Fund I, LP alleges Defendant Property Cowboys, LLC entered into an agreement by which Plaintiff NPI Debt Fund agreed to loan Defendant Cowboy some monies. Defendant Brard and Kott guaranteed the loan. Plaintiff further alleges Defendants defaulted on the loan.

On March 10, 2021, Plaintiff NPI Debt Fund I, LP filed a complaint against Defendants asserting causes of action for (1) Breach of Contract; (2) Goods Sold and Delivered; (3) Book Account; and (4) Account Stated.

Defendant Brard filed a cross-complaint on June 23, 2021 asserting causes of action for 1) Breach of Written Contract; 2) Express Indemnity; 3) Equitable/Implied Indemnity; 4) Appointment and Contribution; 5) Negligence; 6) Declaratory Relief - Duty to Defend; and 7) Declaratory Relief - Duty to Indemnify.

This action is related to 21VECV00335 (NPI Debt Fund I, LP v. Brard, et al.) and 21VECV00333 (NPI Debt Fund I, LP v. Property Cowboys, LLC, et al.)

[TENTATIVE] RULING:

Plaintiff NPI Debt Fund I, LP’s Motion for Summary Judgment is DENIED.

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests this court take judicial notice of the Deed of Trust on the property commonly known as 120 Sirius Circle, Thousand Oaks, CA 91360 (the “DOT”) securing the Loan Agreement between Defendant Property Cowboys, LLC and Plaintiff in the Official Records of Ventura County with Recorder’s File No. 20171124-00152460-0.

Plaintiff’s request for judicial notice is GRANTED.

In opposition, Defendant Kott requests the court take judicial notice of several documents including: (1) “Docket” from this matter 21VECV00329, establishing that no order granting attorney fees has been made or granted (Exh. 1); (2) “Subordination Agreement” recorded in the Official Records of Ventura County, recorded as Document Number 20171124-00152461-0 (Exh. 2); and (3) “Assignment of Deed of Trust” recorded in the Official Records of Ventura County as Document Number 20200106-00001431-0 (Exh. 3).

Defendant Kott’s request for judicial notice is GRANTED.

DISCUSSION

Plaintiff NPI Debt Fund I, LP moves for an order entering summary judgment in its favor and against Defendants Property Cowboys, LLC, Robert Brard, and Stephen Kott on the grounds Plaintiff is entitled to the entry of judgment as a matter of law and there is no triable issue of material fact. Defendant Kott opposes the motion. Defendant Brard filed a Notice of Joinder.

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 Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code of Civil Procedure section 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. Minor 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).  

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 establish an essential element or to negate a defense. (CCP §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.)  Once the moving party has met that burden, the burden shifts to the non-moving 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.)

Plaintiff argues they are entitled to judgment according to the contract. Plaintiff presents evidence of the agreement between Plaintiff and Defendants Cowboys, Kott, and Brard as well as evidence of the terms of the agreement, the Defendants’ breach of the agreement, and Plaintiff’s damages. (UMF 1-12.)

Defendant Kott opposes the motion for summary judgment on several procedural and substantive grounds. Defendant Kott first argues Plaintiff’s motion failed to comply with Rule of Court, Rule 3.1350(i), (h), and (d). The court agrees Plaintiff has failed to comply with the Rules of Court, Rule 3.1350. However, “the court's power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Despite Plaintiff’s failure to firmly adhere to the Rules of Court, the court finds Defendant Kott was able to properly oppose the motion for summary judgment. Defendant Kott also procedurally opposes the motion for summary judgment on the grounds although Plaintiff’s caption page titles the motion as one for “summary judgment, or in the alternative, summary adjudication,” no such content or description of what specific causes of action are to be adjudicated is contained in the notice of motion. Because there is no discussion of Plaintiff’s common counts claim against the Defendants, summary judgment must be denied. The court agrees that Plaintiff failed to properly move for summary adjudication.

Next, Defendant Kott argues the facts stated in the separate statement are not supported by citations to admissible evidence to establish the purported fact stated. The court agrees, in part. For example, Plaintiff cites to paragraphs 9, 10, and 12 to support their contention Defendant Cowboys breached the Loan Agreement by failing to make the Balloon Payment. For example, upon review of the declaration, paragraphs 9, 10, and 12 make no reference to Defendant Cowboys breach. However, paragraphs 17 and 18 state “Defendant Cowboys was to pay back the entirety of the remaining loan balance on June 1, 2018 (the “Balloon Payment”). Neither Defendant Cowboys nor Defendants Brard and Scott have made the Balloon Payment.” (Lowe Decl. ¶¶17-18.) Similarly, Plaintiff cites to paragraphs 15 and 16 to describe their damages. However, Plaintiff does not discuss their damages until paragraph 20.

Even considering Plaintiff’s defective separate statement, Defendant has presented a triable issue of material fact. First, Defendant has presented evidence that Plaintiff seeks damages that include “advances” made to a senior lienholder yet there is no mention of the advancement in the declaration or attached exhibits other than Plaintiff’s account history (Exh. 5). Defendant has also presented evidence to dispute whether Kott was a guarantor on the loan by Arch Bridge Loans, the original loan provider Plaintiff claims assigned their senior loan to. (KAMF 12.) This assignment is also not mentioned in Plaintiff’s separate statement. Lastly, Plaintiff has not submitted prima facie evidence regarding their common counts claims.

Accordingly, Plaintiff has not established all the elements essential to their claim.

Defendant Kott also opposes the motion on the grounds Plaintiff’s Person Most Knowledgeable failed to attend their deposition. “If 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, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (CCP §473c(h).)

However, in light of the ruling on the motion, Plaintiff’s request is moot.

The court notes Defendant Brard also submitted a Notice of Joinder to Plaintiff’s motion for summary judgment. Defendant Brard argues genuine issues of disputed material facts exist as to: (1) whether or not the at-issue guarantees were in fact “sham” guarantees such that California’s anti-deficiency statutes forbid maintenance of this action against Defendants, and (2) the calculation of any enforceable deficiency, if any. To support their contention, Defendant Brard presents evidence the agent of Plaintiff informed Defendant’s wife that they did not lend on owner-occupied property and that a limited liability company would have to be used instead. (DDMF 1, Exh. A.) This is sufficient to demonstrate a triable issue of material fact as to the sham guaranty defense. As Defendant Brard has demonstrated a triable issue of material fact, the court need not address Defendant Brard’s usury argument.

Accordingly, Plaintiff’s motion for summary judgment is DENIED.