2018-00233437-CU-CL

Bank of the Ozarks vs. Satnam Singh

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Velen, Angela A.

Plaintiff Bank of the Ozarks’ unopposed motion for summary judgment, or in the alternative summary adjudication, is granted.

In this commercial collection action Plaintiff alleges causes of action against Defendant Satnam Singh for breach of contract, common counts and conversion. Plaintiff alleges that it entered into an equipment finance agreement with Defendant for the purchase of a heavy duty semi-truck and that Defendant failed to make the required payments.

Any party may move for summary judgment in any action or proceeding if the party contends that (1) the action or proceeding has no merit or (2) there is no defense to the action or proceeding. CCP 437c(a). A cause of action has no merit if one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded, or a defendant establishes an affirmative defense to that cause of action. CCP §437c(o).

The Court must grant a motion for summary judgment 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. (CCP §437c(c); Mann v. Cracchiolo (1985) 38 Cal.

3d 18, 35). Section 437c(c) imposes an affirmative duty on a Court to grant summary judgment motion in appropriate case. (Preach v. Moister Rainbow (1993) 12 Cal. App. 4th 1441, 1450). The Court must decide if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to determine it. ( Pittelman v. Pearce (1992) 6 Cal. App. 4th 1436, 1441; see also Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal. App. 4th 394, 404).

Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. ( Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 830). In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process.The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (see Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. ( Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) A party may not raise new issues in a declaration submitted in connection with a summary judgment motion. Lewinter v Genmar Indus., Inc. (1994) 26 Cal. App. 4th 1214, 1223.

Next, the Court is required to determine whether the moving party has met its burden. A plaintiff moving for summary judgment meets its burden of showing that there is no defense to its cause of action by proving each element of its cause of action. CCP §437c(p)(1). It is no longer required also to disprove any defense asserted by the defendant. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:235, p. 10-89 (rev. # 1, 2006) [when plaintiff moves for summary judgment “[u]nlike former law, it is not plaintiff’s initial burden to disprove affirmative defenses and cross-complaints asserted by defendant”].) 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 … .” (Code Civ. Proc., § 437c, subd. (p)(1).) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [Fn. omitted.]” (Aguilar v. Atlantic Richfield Co., (2001) 25 Cal. 4th 826, 850.)

A defendant (or cross-defendant) moving for summary judgment meets its burden of showing that the plaintiff’s (or cross-complainant’s) cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. CCP §437c(p) (2); Id. A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 Cal 4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at 853-855).

Finally, the Court must determine whether the opposing party has met its burden. Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App. 4th 685, 690.) When the defendant has met its burden of production, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the plaintiff’ s cause of action or a defense to it. (CCP §437c(p) (2); Bowen v. Ziasun Technols., Inc.(2004) 116 Cal App 4th 777, 780.) In meeting this burden, a plaintiff may not rely on the mere allegations or denial of its pleadings to show that a triable issue of material fact exists but, instead, must set forth specific facts showing that a triable issue of material fact exists as to that cause of action or a defense to it. (CCP §437c(p)(2); Aguilar v Atlantic Richfield, supra, 25 Cal. 4th at 849). The plaintiff or cross-complainant cannot simply point to an absence of evidence to avoid summary judgment. Borders Online LLC v State Bd. of Equalization (2005) 129 Cal. App. 4th 1179, 1192. The plaintiff must present concrete evidence of causation and damages. Wiz Tech, Inc. v Coopers & Lybrand (2003) 106 Cal. App. 4th 1, 14-15)

Plaintiff’s separate statement includes the following. On July 30, 2015, the parties entered into an equipment finance agreement pursuant to which Plaintiff provided Defendant $70,620 in financing to purchase a 2013 Freightliner Cascadia (“Truck”). Plaintiff only financed the purchase of the Truck. Defendant was to pay the loan in 48 equal monthly payments of $1,699.29. Defendant breached the agreement by failing to make the required monthly payments and last made a payment on January 30, 2018. Pursuant to the terms of the agreement Plaintiff declared the entire balance due and there is currently a balance owed by Defendant of $37,384.38. Under the agreement Plaintiff is entitled to the possession of the truck which is still in Defendant’s possession despite a demand for return. The value of the Truck is $37,500. The agreement provided that if Defendant defaulted on the loan, Plaintiff was entitled to take immediate possession of the Truck. The agreement also provides for the recovery of attorneys’ fees and costs.

The essential elements to be pleaded in an action for breach of contract are (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance,

(3) the defendant’s breach, and (4) the resulting harm to the plaintiff. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1388.) Plaintiff’s evidence establishes that the parties entered into an agreement and that Defendant breached the agreement by failing to make the required payments and currently owes $37,384.38. The same evidence establishes Plaintiff’s common count causes of action. Plaintiff, however, must elect between the breach of contract cause of action and the common counts and cannot obtain judgment on both.

In addition, the evidence establishes Plaintiff’s causes of action for claim and delivery and conversion. Parenthetically, one who is entitled to the possession of personal property held by another may bring an action for the specific recovery of that property. (McFaddin v. H.S. Crocker Co. (1963) 219 Cal. App. 2d 585, 590.)This action for the recovery of specific personal property is the equivalent of the common law writ of replevin. (Berry v. Bank of Bakersfield (1918) 177 Cal. 206, 209.) Claim and delivery is a claim for return of personal property wrongfully detained with damages caused by the wrongful taking/detention. (Fredericks v. Tracy (1893) 98 Cal. 658, 660.) The elements of a conversion cause of action 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.” (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.)
The evidence shows that Plaintiff is entitled to possession of the Truck valued at

$37,500. However, Plaintiff must elect between recovery of the Truck pursuant to the
claim and delivery cause of action and damages representing the value of the Truck
under the conversion cause of action.

The evidence presented shows that Plaintiff is entitled to judgment as matter of law on its complaint and 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. (See generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App. 4th 685, 690.). Plaintiff, therefore, is entitled to judgment as a matter of law.

Plaintiff’s counsel shall submit an order and judgment pursuant to CRC 3.1312 and CCP § 437c(g) consistent with the above and reflecting the election of remedies. Plaintiff may seek fees and costs pursuant to the Rules of Court.