Auto Buyline Systems, Inc. vs. GB Auctions, Inc.

Debtors assert here that they were not in fact personally served on either occasion. (See ROAs 181, 183, 205 and 207.) But they have failed to meaningfully respond to the declarations from the server, as reflected in ROAs 229 and 231, providing a physical description of each Debtor and stating the circumstances of the 4/8/26 service. The Motion thus fails to show that the requested relief is warranted here.

Counsel for Creditor is to give notice of this ruling. 6 Auto Buyline Defendant GB Auctions, Inc.’s (“Defendant”) Motion for Stay is Systems, Inc. DENIED. vs. GB Auctions, Inc. The court first notes Defendant failed to provide any statute or code which permits the requested relief and the Motion may be denied solely on that basis.

The issue before the court is whether this action, which is based upon a guaranty (“Guaranty”) between Defendant and plaintiffs Auto Buyline Systems, Inc. and Thomas J. Harmon (“Plaintiffs” together) should proceed before liability has been determined on the underlying Asset Purchase Agreement (“APA”), which Defendant guaranteed by way of the Guaranty. Under the specific terms of the Guaranty, Plaintiffs may seek to recover any damages under the APA at any time regardless of whether liability has been determined on the APA.

“A surety who has assumed liability for payment or performance is liable to the creditor immediately upon the default of the principal, and without demand or notice.” (Ralston-Purina Co. v. Carter (1962) 210 Cal. App. 2d 372, 380; Civ. Code §§ 2787, 2806, 2807.) “In a guaranty of payment the liability was fixed by the failure of the principal debtor to pay at maturity or at the time when payment was guaranteed. It was immaterial whether the debtor could or could not pay the debt.” (Ingalls v. Bell (1941) 43 Cal.

App. 2d 356, 367.) “[R]emedies against the principal debtor must, of course, have been exhausted where the parties so provided in their contract. [Citations.] Under section 2807 of the Civil Code then in effect, a guarantor of payment or of performance was liable to the guarantee immediately upon the default of the principal and without demand or notice. So there was no duty resting on the creditor to exhaust the remedies against the debtor, and mere delay or failure on the part of the creditor to proceed against the principal debtor did not exonerate the guarantor unless the contract of guaranty provided that such action must be taken” [Emphasis added.] (Ibid.) “A guarantor had no right to compel the creditor to avail himself of the remedies against the debtor unless he paid the obligation, in which case he could have compelled the creditor to act by a proceeding in equity.” (Id., at 368.) “An action against a guarantor must be brought specially upon the contract of guaranty itself. [Citations.]

The action so brought is not for the collection of the principal debt, as such, and is in fact independent of any action upon the principal obligation.” (Ibid.)

Defendant specifically agreed, “that in the event of a default by Buyer under the APA, beyond all applicable notice and cure periods, Seller may proceed against the Guarantor before, after or simultaneously with proceeding against Buyer. [¶]” [Emphasis added.] (Mitzev Decl., Ex. A ¶ 1.) “This Guaranty shall not terminated, affected, or impaired in any manner by reason of (1) the assertion by Seller against Buyer of any of the rights or remedies reserve to Seller pursuant to the provisions of the APA; 2) the commencement of summary or any other proceedings against Buyer; 3) the failure of Seller to enforce any of its rights against Buyer; . . . or 5) an assignment of the APA by Seller of Buyer.” (Mitzev Decl., Ex. A ¶ 2.)

As the terms of the Guaranty specifically permit Plaintiffs to proceed in an action against Defendant at any time based on lack of full and timely payment under the APA, a determination of liability on the part of EBlock is not necessary before this matter can proceed. The two actions in question are separate and distinct as this one is based on a breach of the Guaranty and the other action is based upon a breach of the APA.

The motion is denied.

Plaintiffs to give notice. 7 Third Laguna The unopposed motion by plaintiff Third Laguna Hills Mutual (Third Hills Mutual v. Mutual) for an award of attorney’s fees against defendant Michael Glover Glover is GRANTED.

In the instant motion, plaintiff seeks attorney’s fees pursuant to Civil Code section 5975, subdivision (c), and Article XXI of the CC&Rs. The Court finds Third Mutual to be the prevailing party as it achieved the objectives of the litigation. (See, Complaint, generally; Kramer Decl. ¶¶6-9; Hsu v. Abbara (1995) 9 Cal.4th 863, 876; Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 260–61.)

“Once the trial court determined the Association to be the prevailing party in the action, it had no discretion to deny attorney fees.” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263)

Here, Third Mutual seeks $30,727.90 in fees. “The moving party has ‘the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Third Mutual has submitted invoices supporting the motion as well as declarations of counsel and has met its burden. The Court finds the fees reflected on the invoices reasonable. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096 – discussing discretion of the court.) Finally, there is no opposition to the motion.