Case Name: Wells Fargo Equipment Finance, Inc. v. Silicon Valley Fleet Services, LLC, et al.
Case No.: 17-CV-311779

I. Background

This lawsuit arises from a dispute over the lease of a vehicle. In June 2016, defendant Silicon Valley Fleet Services, LLC (“SV Fleet”) leased with the option to purchase a 2016 Ford F-650 truck (the “Truck”), complete with aluminum bed and accessories, from nonparty Beacon Funding Corporation. (First Amended Complaint (“FAC”), ¶ 12.) Beacon Funding Corporation assigned its interest in and rights under the lease to plaintiff Wells Fargo Equipment Finance, Inc. (“Wells Fargo”). (FAC, ¶ 14.) Wells Fargo alleges SV Fleet breached the lease agreement by, among other things, failing to make timely payments and attempting to transfer the Truck to a third party. (FAC, ¶ 15.) Wells Fargo seeks possession of the Truck and damages in the amount of $91,680.06. (FAC, ¶¶ 17, 22.) Wells Fargo also alleges defendants Alexandra and Nahum Schwartz (collectively, the “Schwartzes”) guaranteed the lease and are thus liable for these damages as well. (FAC, ¶¶ 27-31.) Finally, Wells Fargo alleges defendant Pennimen Market Group, Inc. (“Pennimen”) and defendant Saiid Mohamed claim some interest in and are wrongfully retaining possession of the Truck. (FAC, ¶¶ 19-26.)

Wells Fargo asserts causes of action against SV Fleet, the Schwartzes, Pennimen, and Mr. Mohamed (collectively, “Defendants”) for: (1) breach of contract (against SV Fleet); (2) recovery of specific personal property (against Defendants); (3) conversion (against Defendants); (4) breach of guaranty (against the Schwartzes); and (5) temporary, preliminary, and permanent injunctive relief (against Defendants). Wells Fargo also asserts a cause of action for (6) “Reg 500 Courtesy Stop Temporary, Preliminary Permanent Injunction” against defendant California Department of Motor Vehicles (the “DMV”) and defendant Jean Shiomoto, Director of the DMV, to prevent title to the Truck from being transferred.

Wells Fargo moves for summary judgment on the ground there is no defense to any of the causes of action in the FAC. In the alternative, Wells Fargo moves for summary adjudication of the first, second, third, fourth, fifth, and sixth causes of action as well as Defendants’ affirmative defenses. Defendants and Wells Fargo filed objections to evidence.

II. Standard of Review

A plaintiff may move for summary judgment “if it is contended that. . . there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “A plaintiff [ ] has met his or her 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 the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).)

“Once the plaintiff has met that burden, the burden shifts to the defendant [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) “The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subds. (b)(2), (p)(1).)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“A motion for summary adjudication may be made [ ] as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) As distinct from a motion for summary judgment, a motion for summary adjudication “shall be granted only if it disposes of a cause of action [or] an affirmative defense. . . .” (Code Civ. Proc., § 437c, subd. (f)(1).)

III. Evidentiary Matters

A. Defendants’ Objection

Defendants filed one objection to Wells Fargo’s evidence. Although Defendants frame their objection as being directed to paragraph 12 of Wells Fargo’s separate statement, it appears they are in fact objecting to a portion of the declaration of Gregg A. Gengler and portions of the declaration of Wells Fargo’s counsel cited in support. Defendants argue Mr. Gengler and Wells Fargo’s counsel lack personal knowledge sufficient to testify as to whether Pennimen and Mr. Mohamed refused to surrender the Truck.

Declarations filed in support of a motion for summary judgment and/or summary adjudication “shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Code Civ. Proc., § 437c, subd. (d); see also Evid. Code, § 702, subd. (a) [“[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”].)

As for Mr. Gengler, he states in paragraph 31 of his declaration that “[a]s reflected in the accompanying Scott declaration, [Pennimen] and Mohamed refused to surrender the [Truck.]” To the extent this statement can be interpreted as a declarative statement, and not simply a cross-reference to other evidence, Defendants’ objection is meritorious. Mr. Gengler’s declaration does not contain facts sufficient to show he has any independent recollection of the fact of the refusal to return the Truck. To be sure, in the same sentence in which he asserts the refusal occurred, Mr. Gengler effectively disclaims any personal knowledge of the fact. Accordingly, Defendants’ objection to paragraph 31 of Mr. Gengler’s declaration is SUSTAINED.

As for the declaration of Wells Fargo’s counsel, Defendants object to paragraphs 2 and 10. In paragraph 2, Wells Fargo’s counsel states “[t]he purpose of this declaration is to demonstrate. . . that [Pennimen] and Mohamed are currently in possession of the [Truck]. . . .” In paragraph 10, Wells Fargo’s counsel states Mr. Mohamed and Pennimen have not complied with a turn over order and so contempt proceedings are scheduled. Notably, the prefatory statement in paragraph 2 does not clearly support a finding that Mr. Mohamed and Pennimen refused to return the Truck. Nevertheless, the statements in paragraphs 2 and 10 of the declaration of Wells Fargo’s counsel are facts of which he has personal knowledge as a lawyer participating in this matter. Accordingly, Defendants’ objection is OVERRULED with respect to the declaration of Wells Fargo’s counsel.

B. Wells Fargo’s Objections

Wells Fargo filed objections to portions of Defendants’ evidence along with its reply. The Court need not rule on these objections because the evidence objected to is not material to the disposition of the motion; Wells Fargo’s objections are preserved. (See Code Civ. Proc., § 437c, subd. (q).)

IV. Analysis

Wells Fargo moves for summary judgment, or in the alternative, summary adjudication of the causes of action in the FAC and Defendants’ affirmative defenses. Consequently, it is necessary to first address the causes of action for purposes of evaluating Wells Fargo’s motion for summary judgment before addressing Defendants’ affirmative defenses, which it places at issue solely for purposes of the motion for summary adjudication. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, citing Code Civ. Proc., § 437c, subd. (p)(1) [plaintiff need not disprove affirmative defenses to carry initial burden at summary judgment].)

A. Causes of Action

For purposes of this motion, it is helpful to address the causes of action in a different order than that in which they are pleaded. Accordingly, the causes of action are considered as follows: (1) first cause of action for breach of contract; (2) fourth cause of action for breach of guaranty; (3) third cause of action for conversion; (4) second cause of action for recovery of specific personal property; (5) fifth cause of action for injunctive relief; and (6) sixth cause of action for injunctive relief.

1. First Cause of Action

The first cause of action is for breach of contract. Wells Fargo alleges SV Fleet committed thirteen distinct breaches of the lease agreement for the Truck by, for example, failing to timely pay rent for the Truck and allowing others to possess and claim an interest in the Truck. (FAC, ¶¶ 15(a)-(m).)

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Thus, to carry its initial burden, Wells Fargo must present evidence establishing each element of its breach of contract claim.

In its memorandum of points and authorities, Wells Fargo simply concludes that SV Fleet breached the contract because it owes money pursuant to the lease agreement. Wells Fargo’s approach is problematic because it neglects to address all of the essential elements of its claim as well as all of the individually identified breaches pleaded in the first cause of action. Although Wells Fargo does present evidence of a lease agreement, it does not adequately explain how the evidence supports the conclusion that it performed in accordance therewith and that SV Fleet, nevertheless, committed each of the thirteen breaches alleged. (See Gengler Decl., Ex. 1 [Lease Agreement].)

Turning to Wells Fargo’s separate statement, it does not actually cite evidence to support each breach it identifies. (See Cal. Rules of Court, rule 3.1350(f) [moving party must cite evidence establishing each undisputed material fact].) In support of the undisputed material fact in paragraph 6(m), which is that SV Fleet “jeopardiz[ed] the value of [the Truck],” Wells Fargo cites portions of the declarations of Gregg A. Gengler and its counsel. But it is not self-evident, particularly in the absence of any explanation, how the cited portions of these declarations support the undisputed material fact in paragraph 6(m) or any other undisputed facts material to the first cause of action.

For example, Mr. Gengler, who works for Wells Fargo, provides little information about the facts of this case and his personal knowledge thereof. Instead, his declaration contains conclusory statements that appear to have been copied and pasted from the FAC, such as the conclusion that SV Fleet “defaulted under the Lease by, among other things:” followed by a list of the same conclusory allegations in the pleading. (Gengler Decl., ¶ 10.) A declaration in support of a motion for summary judgment must contain “evidentiary facts, not legal conclusions or ‘ultimate’ facts.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 638-39; accord Hope Internat. University v. Super. Ct. (2004) 119 Cal.App.4th 719, 739, fn. 9 [“[C]onclusions of fact are not binding on a summary judgment motion.”].) Accordingly, Mr. Gengler’s declaration is insufficient to establish SV Fleet committed each of the thirteen breaches alleged.

Furthermore, with respect to the element of damages, Wells Fargo argues “it is undisputed that [it] is owed the sum of $93,915.64 as a result of [SV Fleet’s] defaults.” (Mem. of Pts. & Auth. at p. 10:13.) But the pleadings limit the issues for purposes of summary judgment and/or summary adjudication, (see Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 806), and in the FAC, Wells Fargo alleges it is owed and seeks to recover only $91,680.06. (FAC at p. 13:1.) Thus, as a preliminary matter, there is an unexplained discrepancy between the amount of damages alleged in the FAC and the amount of damages Wells Fargo now seeks to recover.

Additionally, Wells Fargo does not present sufficient evidence “showing both the fact and the amount of damages.” (Pajaro Valley Water Management Agency v. McGrath (“Pajaro Valley”) (2005) 128 Cal.App.4th 1093, 1106.) Well Fargo again relies on the declaration of Gregg A. Gengler, but Mr. Gengler does not provide information about SV Fleet’s charges, payments, and missed payments sufficient to substantiate the amount of damages claimed. Instead, Mr. Gengler concludes Wells Fargo is owed “no less than $93,915.64” and states a damages report is “attached.” (Gengler Decl., ¶ 13.) A summary of damages simply “attached” to a declaration is insufficient to prove damages at summary judgment. (Pajaro Valley, supra, 128 Cal.App.4th at pp. 1107-08.) Wells Fargo does not submit evidence to support its summary of damages, and the other evidence it submits, such as an acceleration notice, reflects a total amount due of $89,779.49. (Gengler Decl., Exs. 8-9.) Thus, Wells Fargo does not present evidence showing it is entitled to either the amount of damages alleged or the amount claimed in its memorandum of points and authorities. “As damages are an element of a breach of contract cause of action [citation], a plaintiff cannot obtain judgment on a breach of contract cause of action” without proving damages. (Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal.App.4th 226, 241.)

Because Wells Fargo does not present evidence establishing the essential elements of its breach of contract claim, it fails to carry its initial burden of establishing there is no defense to the first cause of action.

2. Fourth Cause of Action

The fourth cause of action is for breach of guaranty and is based on the allegation that the Schwartzes are liable for SV Fleet’s breaches as guarantors of the lease.

For context, a guarantor is defined as “one who promises to answer for the debt, default, or miscarriage of another. . . .” (Civ. Code, § 2787; see also California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 632.) Thus, a claim for breach of guaranty is simply a species of breach of contract claim based on the specific promise to answer for another’s breach, debt, default, or miscarriage. (Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486.) Although not articulated by Wells Fargo, the essential elements of this claim are: “(1) there is a valid guaranty, (2) the borrower has defaulted, and (3) the guarantor failed to perform under the guaranty.” (Ibid.)

Wells Fargo does not separately address the fourth cause of action or the essential elements thereof. It simply concludes in its discussion of the first cause of action for breach of contract that the Schwartzes breached their guaranty. Thus, for the reasons set forth above with respect to the first cause of action, Wells Fargo also fails to demonstrate an underlying default for purposes of its claim for breach of guaranty. Additionally, although guaranties signed by the Schwartzes are attached to Mr. Gengler’s declaration, Wells Fargo does not discuss these documents in its memorandum of points and authorities. Thus, Wells Fargo does not provide any analysis sufficient to demonstrate the guaranties are valid and that the Schwartzes failed to perform in accordance with their terms.

A “trial court [has] no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case. [Citation.]” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) Where, as here, a party simply asserts a conclusion without providing any analysis of evidence or legal authority to support the conclusion, no discussion is warranted. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

For these reasons, Wells Fargo does not carry its initial burden of demonstrating there is no defense to the fourth cause of action.

3. Third Cause of Action

The third cause of action is for conversion and is based on the allegation that Defendants have not returned the Truck to Wells Fargo despite its right to immediate possession. (FAC, ¶¶ 23-26.)

“The basic elements of the tort [of conversion] are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting damages.” (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

Here, although Wells Fargo asserts it is entitled to possession of the Truck, it is silent as to the essential element of damages. The FAC does not contain an allegation as to the amount of damages sought in connection with the third cause of action, and Wells Fargo does not articulate in its memorandum of points and authorities or separate statement what damages it is seeking. Accordingly, Wells Fargo has not proven the essential elements of its conversion claim as necessary to carry its initial burden of demonstrating there is no defense to the third cause of action.

4. Second Cause of Action

The second cause of action is denominated as a claim for recovery of specific personal property, also known as claim and delivery, and is asserted against Defendants. (FAC at p. 7:22-23.) For context, “[a] secured party wishing to repossess by judicial action, can bring an action in replevin or proceed under the statutory successor to replevin, an action of claim and delivery.” (Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 241.) “Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment.” (Id. at p. 241; accord Blair v. Pitchess (1971) 5 Cal.3d 258, 277-79 [claim and delivery is a provisional, summary remedy for recovering property].) “California has a detailed claim and delivery law.” (Simms, supra, 109 Cal.App.4th at p. 241, citing Code Civ. Proc., § 511.010, et seq.) But Wells Fargo does not discuss this law or actually identify the essential elements of its claim as necessary to prove each element. Consequently, Wells Fargo does not carry its initial burden of demonstrating there is no defense to the second cause of action.

5. Fifth and Sixth Causes of Action

The fifth and sixth causes of action are for temporary, preliminary, and permanent injunctive relief. But although denominated as causes of action in the FAC and treated as such in Wells Fargo’s memorandum of points and authorities, there is no such thing as a cause of action for injunctive relief. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.) “Injunctive relief is a remedy.” (Ibid.) “A cause of action must [be proven] before a court may grant a request for injunctive relief.” (Ibid.) But Wells Fargo did not carry its initial burden of establishing there is no defense to one of the underlying causes of action asserted in the FAC. Furthermore, a claim for injunctive relief arguably is not a proper subject of a motion for summary adjudication because it is not a cause of action. (See Code Civ. Proc., § 437c, subd. (f)(1).) In conclusion, Wells Fargo does not demonstrate it is entitled to injunctive relief.

6. Conclusion

Wells Fargo does not carry its initial burden of proving the essential elements of each cause of action in the pleading as necessary to prove there is no defense thereto. Thus, Wells Fargo is not entitled to summary judgment or to summary adjudication of the first, second, third, fourth, fifth, and sixth causes of action.

Although not required to disprove Defendants’ affirmative defenses for purposes of its motion for summary judgment, Wells Fargo seeks summary adjudication of these affirmative defenses in the alternative. This component of Wells Fargo’s motion for summary adjudication is addressed below.

B. Affirmative Defenses

Wells Fargo seeks summary adjudication of Defendants’ affirmative defenses. But as a preliminary matter, Wells Fargo does not identify the affirmative defenses at issue. “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action [or] affirmative defense. . . must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).) In its notice of motion and separate statement, Wells Fargo refers generically to “affirmative defenses” without identifying any in particular. (Not. of Mot. at p. 3:14; Sep. Stat. at p. 46:2.) Wells Fargo’s memorandum of points and authorities is similar lacking in clarity and specificity. Although Wells Fargo refers to the first affirmative defense of failure to state a cause of action in passing, it does not actually state it seeks summary adjudication of that or any other affirmative defense in particular.

Even if it had, Wells Fargo does not adequately support its position with legal analysis. Wells Fargo’s first supporting argument is actually just the conclusion that “[t]he boilerplate affirmative defenses are without merit.” (Mem. of Pts. & Auth. at p. 13:1.) Significantly, Wells Fargo does not cite any legal authority to support its position. Wells Fargo otherwise argues SV Fleet agreed not to assert any claims, defenses, or offsets against an assignee, but it does not explain how this argument supports the conclusion that Defendants’ affirmative defenses are without merit. Even as to SV Fleet alone, Wells Fargo does not identify any contractual language to support its argument or demonstrate how that contractual language can be interpreted as barring a particular affirmative defense asserted by SV Fleet. Again, the “trial court [has] no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case. [Citation.]” (Quantum Cooking Concepts, Inc., supra, 197 Cal.App.4th at p. 934.) Wells Fargo does not substantiate its arguments. Consequently, it is not entitled to summary adjudication of Defendants’ affirmative defenses.

V. Conclusion

Because Wells Fargo does not carry its initial burden, the motion for summary judgment is DENIED and the motion, in the alternative, for summary adjudication of all six causes of action and Defendants’ affirmative defenses is DENIED.