Case Number: KC066028 Hearing Date: May 08, 2014 Dept: J

Re: Union Bank, N.A. v. Phoenix Building Services, Inc., etc., et al. (KC066023)

(1) MOTION FOR SUMMARY ADJUDICATION AGAINST TONY CASILLAS; (2) MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES FROM TONY CASILLAS (X5)

Moving Party: Plaintiff Union Bank, N.A.

Respondent: No timely opposition filed

POS: Moving OK

The Complaint herein, filed 5/16/13, asserts causes of action for:

1. Breach of Contract
2. Breach of Guarantee
3. Money Lent
4. Money Had and Received

The case is set for Court Trial on 6/09/14.

Plaintiff alleges that it lent $50,000 to the corporate defendant on a line of credit, and that Defendant Tony Casillas signed a personal guarantee of repayment. Plaintiff alleges that the money was borrowed, and never repaid, with the sum of $47,477.93 due and owing, plus accrued interest, late charges, attorney’s fees and costs.

(1) MOTION FOR SUMMARY ADJUDICATION OF ISSUES:

Plaintiff Union Bank, N.A. moves for summary adjudication of the following issues on the ground that there are no disputed issues of material fact and Plaintiff is entitled to summary adjudication as a matter of law as to its Complaint against Tony Casillas (“Casillas”), dba Phoenix Building Services, Inc., a CA corporation (“Phoenix”):

1. Casillas breached the terms of the Personal Guarantees (second cause of action).
2. Casillas has and received money that was lent to him (third and fourth causes of action).
3. Alternatively, if for any reason summary adjudication is not granted, Plaintiff moves for an order adjudicating that there is no viable defense to Plaintiff’s complaint and that the final judgment in this action shall, in addition to any matters determined at trial, award judgment as established by such adjudication.

The initial burden rests with the side moving for summary judgment, even in the absence of an opposition. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.) Plaintiffs may shift the burden of proof to the opposition by submitting evidence as to every element of the cause of action. (CCP §437c(p)(1); WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532.)

FIRST ISSUE: Breach of Guarantee (second cause of action):

Plaintiff must prove the following elements: (1) the existence of a contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage. Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178; Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co (2004) 116 Cal. App. 4th 1375, 1391 n.6.

In this case, Plaintiff claims that Defendant Phoenix executed a “Business Credit Application – Requests for $50,000 or Less” (“Application”) in order to obtain a business line of credit from Plaintiff in the amount of $50,000.00 (Ex. A to Declaration of Michael Polak). Phoenix also allegedly executed a “Business Credit Document – Credit Line” (“Credit Line Verification”) requesting a credit line of $50,000.00 (Ex. B). Plaintiff approved the credit line in that amount, and granted the credit to Phoenix with a maturity date of 2/18/11. Casillas executed a “Personal Guarantee” (“Application Guarantee”) (Ex. A, p. 2 at section 7), and a “Verification Guarantee” (Ex. B at page 2), indicating the formation of a contract.

Under the terms of the Guarantees, Casillas promised to repay all of the obligations of Phoenix to Plaintiff, including those under the Credit Line Agreement. This amount includes all attorney’s fees, costs, and expenses. (Ex. A, p. 2). Plaintiff made the credit line available to Phoenix, constituting performance of its obligation.

On the maturity date, Phoenix was unable to repay the line of credit. Phoenix has defaulted in its payments to Plaintiff, who made demand on Casillas to pay all sums due and owing to it, pursuant to the terms of the Guarantees. Casillas has failed and refused to pay the full amount due and owing, which is a breach of the Guarantee agreements.

Plaintiff claims it has been damaged in the amount of the principal that remains unpaid, which is $47,477.93, plus interest in the amount of $9,252.41, plus attorneys’ fees of $8,257.50, plus costs of $1,620.61, for a total of $66,608.45. (Declaration of Polak, 7:18-25).

Plaintiff has presented sufficient facts to meet its initial burden to establish a breach of the guarantees. Defendant has not filed an opposition, so he has not met his shifted burden. Therefore, summary adjudication of the First Issue is granted.

SECOND ISSUE: Money Lent (third cause of action) and Money Had and Received (fourth cause of action):

Plaintiff must prove the following elements to establish a claim for money lent: (1) defendant is indebted to plaintiff in a certain sum; and (2) for money lent, paid or expended to, or for, the defendant. (Moya v. Northrup (1970) 10 Cal. App. 3d 276, 280.) Similarly, to state a claim for money had and received, Plaintiff must prove: (1) Defendant is indebted to plaintiff in a certain sum; and (2) for money had and received by the defendant. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460.)

Here, Plaintiff has proven both the indebtedness of Casillas to Plaintiff, and that it arose through the lending of money to Phoenix for Casillas (as discussed above). Accordingly, Plaintiff has presented sufficient facts to meet its initial burden to establish claims for money lent and for money had and received. Defendant has not filed an opposition, so he has not met his shifted burden. Therefore, summary adjudication of the Second Issue is granted.

(2) MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (X5):

1. Plaintiff Union Bank, N.A.’s Motion to Compel Further Responses to Demand for Inspection and Production against Tony Casillas is GRANTED; Sanctions are GRANTED

2. Plaintiff Union Bank, N.A.’s Motion to Compel Further Responses to Select Form Interrogatories against Tony Casillas is GRANTED; Sanctions are GRANTED

3. Plaintiff Union Bank, N.A.’s Motion to Compel Further Responses to Select Request for Admissions against Tony Casillas is GRANTED; Sanctions are GRANTED

A party that has propounded discovery and received an unsatisfactory response may move for further responses pursuant to CCP § 2031.310 (for documents), CCP § 2030.300 (for interrogatories), and CCP § 2033.290 (for request for admissions).

Here, on 10/31/13, Plaintiff propounded three types of discovery to Defendant Tony Casillas (“Casillas”), an individual, dba Phoenix Building Services: (1) Demand for Inspection and Production, (2) Form Interrogatories, and (3) Request for Admission of Truth of Facts and Genuineness of Documents. Plaintiff sent three meet and confer letters, and granted an extension to respond to 1/03/14. On 1/13/14, Casillas provided untimely responses. Plaintiff sent a fourth meet and confer letter, but to date has not received a further response. As a result, Plaintiff seeks an order to compel a further response to Demand for Inspection and Production Nos. 1-9, Form Interrogatory No. 15.1, and Request for Admissions Nos. 1-5, 7-13, and 16-27. Defendants have not opposed the motions.

CCP 2015.5 states in relevant part that a declaration executed within this state must “state the date…of execution…”

Here, the Declaration of Nathan R. Berkeley in support of the Motion to Compel Further Responses to Select Form Interrogatories does not state the date of execution. Thus, the facts asserted in that declaration are not properly before the Court. However, most of the material facts relevant to this Motion are repeated in the declaration of Berkeley filed in support of the Motion to Compel Responses to Select Form Interrogatories, except those supporting sanctions. The Court finds sufficient facts exist to grant the Motion to Compel Further Responses, but not for sanctions. (See Amount, below)

4. Plaintiff Union Bank, N.A.’s Motion to Compel Responses to Select Form Interrogatories is GRANTED; Sanctions are GRANTED

5. Plaintiff Union Bank, N.A.’s Motion to Deem All Documents Attached to Plaintiff’s Request for Admission Genuine is GRANTED; Sanctions are GRANTED.

Here, Plaintiff propounded the above discovery, but received no response to form interrogatories nos. 2.9 – 2.11 and 50.1 – 50.6; and no response to Request for Admission and Genuineness of Documents that loan documents “A” and “B” were genuine. Plaintiff seeks an order to compel a response to these items, and Defendants have not opposed the motions. Therefore, the Motions are GRANTED.

Defendant Casillas is ordered to provide further responses to the subject discovery within 10 days.

Sanctions:

Plaintiff asks for monetary sanctions pursuant to CCP § 2031.310(h) (for documents), CCP § 2030.300(d) (for interrogatories), and CCP § 2033.290(d) (for request for admissions). However, the language of those sections only refers to sanctions against a party that unsuccessfully opposes a motion. Where a motion is unopposed, a court that intends to award sanctions must apply CRC 3.1348(a) which states in relevant part, “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed…”

In this case, Defendants did not file opposition to Plaintiff’s Motions, but the Court may award monetary sanctions against Defendants under Rule 3.1348(a). Therefore, the Motion for Sanctions is GRANTED.

Amount:

CCP 2023.040 states in relevant part that a notice of motion must be “accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” The Court has the discretion whether to order sanctions, and rulings regarding discovery sanctions are reversed only if they are whimsical, arbitrary or capricious. (Estate of Ruchti (1993) 12 Cal. App. 4th 1593, 1601.)

Here, Plaintiff seeks sanctions in a total amount of $7,400.00 for all five Motions. However, the Declaration of Nathan R. Berkeley in support of the Motion to Compel Further Responses to Select Form Interrogatories does not state the date of execution (as discussed above). Thus, there are no facts to support the request for sanctions in that motion. Further, none of the declarations supporting these motions discusses the time spent working on them, and only mentions how much money is sought. Without knowing how much time was expended in drafting, etc. the court cannot determine whether the amount sought is fair. The court considers this fact, and takes into account the nature of the issues and type of motion, and reduces the amount of the sanctions requested. Therefore, the motion for sanctions is granted in the total amount of $1,800.00. (6 @ $250 + filing fees of $60 x 5 motions), payable by Defendant Casillas and his attorney of record to counsel for Plaintiff within 10 days.