2013-00151301-CU-CL

The Golden 1 Credit Union vs. John V. Cerato

Nature of Proceeding:      Motion for Summary Adjudication

Filed By:   Burbott, II, James E.

Plaintiff The Golden 1 Credit Union’s unopposed motion for summary adjudication is
granted.

A plaintiff moving for summary judgment meets its 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 that party to judgment on that cause of action. (CCP §437c(p)(1).)  If
the plaintiff does so, the burden shifts to the defendant to show that a triable issue of
fact exists as to that cause of action or defense. In doing so, the defendant cannot rely
on the mere allegations or denial of its pleadings, “but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists….” (CCP §437c(p)(1).)
Once the plaintiff makes the required showing, the burden shifts to the defendant to
show that a triable issue of material fact exists with regard to that cause of action.
(Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar , at p. 850.) Defendant has failed in
his burden.

In this action, Plaintiff asserts causes of action for breach of loan agreement and              common counts of account stated and money lent arising out of allegations that
Defendant opened a Home Equity Line of Credit (“HELOC”) with Plaintiff pursuant to a
written agreement and has defaulted on his obligations.  Plaintiff request that the Court
dismiss the second and third causes of action for common counts in the event the
motion is granted so that judgment may be entered.

Plaintiff’s evidence shows that Defendant opened a HELOC loan pursuant to the terms
of a written agreement.  Plaintiff agreed that Defendant would receive a $40,000 loan
and Defendant agreed to repay the loan in monthly payments with interest at the
contract rate.  The agreement provided that if Defendant failed to make the monthly
payments, Plaintiff could declare the unpaid balance immediately due and that
Defendant was required to pay expenses incurred in collecting the balance including
attorneys’ fees.  Plaintiff performed all conditions, covenants, and promises under the
agreement.  Defendant breached the agreement by failing to make the required
monthly payments when due after October 4, 2012.  The HELOC was secured by a
deed of trust which was ultimately extinguished when the senior lienholder foreclosed
on the property rendering Plaintiff’s security valueless.  Defendant currently owes
Plaintiff $40,707.11 in principal and $4,112.12 in pre-judgment interest.

A breach of contract requires proof of (1) a contract; (2) plaintiff’s performance or
excuse for nonperformance; (3) defendant’s breach; and (4) damages.  (CDF
th
Firefighters v. Maldonado (2008) 158 Cal.App.4   1226, 1239.)  Plaintiff’s showing is
sufficient to shift to defendant the burden of demonstrating the existence of a triable
issue of material fact.  (Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 849.)
By failing to oppose Plaintiff’s motion, defendant cannot meet his burden.  Plaintiff,
therefore, is entitled to judgment as a matter of law on the first cause of action for
breach of contract.

The motion for summary adjudication as to the first cause of action is granted.  In
addition, pursuant to Plaintiff’s request, the second and third causes of action are
dismissed with prejudice, which will allow the Court to enter judgment in this action.

The Court notes that the reply seeks attorneys’ fees incurred in drafting the reply and
states that Plaintiff also sought attorneys fees and costs in the initial moving papers. In
point of fact, it did not.  In the moving papers, Plaintiff only sought judgment for
$40,707.11 in principal and $4,122.12 in interest and asked for judgment in the amount
of $44,819.23.  Fees and costs were not discussed.  In any event, fees and costs must
be sought pursuant to CRC Rules 3.1700, 3.1702.

The Court will sign the proposed order and judgment.