JENKINS VS. GREENSKY

and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

Application:

Plaintiff’s Undisputed Facts show that Plaintiff and Defendants entered a written credit card agreement and Defendants ceased making payments on 7/24/24, leaving $45,645.16 due and owing. (Facts 1-12.) Plaintiff has complied with its duties under the agreement. (Fact 13.) Therefore, Plaintiff has met its initial burden as to its claim for breach of contract.

Defendants have not filed an opposition to the motion as of 8/13/26. Therefore, the motion is granted.

15. JENKINS VS. GREENSKY 2021-01229679 MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION

Defendants GreenSky, LLC and Synovus Bank’s unopposed motion for an order granting summary judgment, or in the alternative, summary adjudication, is GRANTED.

Plaintiff’s Allegations

Plaintiff contracted with The House Next Door Remodeling and Construction (House Next Door) for home improvements. (FAC ¶ 11.) Plaintiff alleges House Next Door concealed they were not licensed contractors and negligently performed work that was defective and below industry standards. (FAC ¶¶ 15, 16.)

Plaintiff further alleges House Next Door “utilized Plaintiff and his wife’s identifies” to fraudulently obtain a $30,000 loan with GreenSky. (FAC ¶ 34.) Plaintiff alleges the loan was not executed by Plaintiff or his wife and that a lien was eventually placed on Plaintiff’s property. (FAC ¶ 34.)

Second Cause of Action for Fraud

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [citations omitted].)

The loan at issue in this matter was financed by Defendant Synovus Bank (Synovus) and serviced by Defendant GreenSky, LLC (GreenSky). (UMF No. 12.)

The undisputed evidence demonstrates Synovus’ sole role in the subject loan transaction was to provide financing. (UMF No. 16.) Synovus had no interaction with House Next Door or Plaintiff, had nothing to do with any of the work performed at Plaintiff’s home by House Next Door, and had no knowledge of the licensing status or qualifications of House Next Door. UMF Nos. 14, 15, 16.)

Similarly, GreenSky did not have any direct communications with Plaintiff regarding the transaction with House Next Door or the financing for the loan transaction. (UMF No. 17.) After a merchant is enrolled in GreenSky’s merchant program, GreenSky checks the licensing status of the merchant. (UMF No. 9.) GreenSky confirmed House Next Door was a fully licensed contractor in California prior to the transactions with Plaintiff. (UMF No. 32.)

Finally, in the Program Agreement, House Next Door represented to GreenSky that House Next Door “is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite power and authority to carry on its business as presently conducted and is duly qualified or licensed to do business and is in good standing (where such concept is recognized under applicable law) in each jurisdiction where the nature of its business or the ownership or operation of its properties makes such qualification or licensing necessary, . . . .” (UMF No. 23.)

Additionally, Defendants present evidence Plaintiff and his wife applied for a line of credit through the GreenSky program on 3/31/17. (UMF No. 24.) Plaintiff subsequently accepted the benefit of more than $30,000 in loan proceeds for work performed by House Next Door and made no less than 33 payments to GreenSky under the loan over a period of three years. (UMF Nos. 25, 26.)

Plaintiff has not opposed the motion and therefore presents no evidence demonstrating any misrepresentations by Defendants regarding House Next Door’s licensing status or qualifications or as to the loan at issue.

Accordingly, while the burden has shifted to Plaintiff, Plaintiff has not met his burden of demonstrating a triable issue of material fact exists as to the fraud cause of action.

Third Cause of Action for Conspiracy to Defraud

“Civil conspiracy is not an independent cause of action. Instead, it is a theory of co-equal legal liability under which certain defendants may be held liable for ‘an independent civil wrong’ committed by others. . . . “Under a conspiracy theory of recovery, liability depends on the actual commission of a tort. . . . [T]he conspiring defendants must have actual knowledge that a tort is planned and concur in the scheme with knowledge of its unlawful purpose. Knowledge of the planned tort must be combined with intent to aid in its commission.”

(Navarette v. Meyer (2015) 237 Cal.App.4th 1276, 1291-1292 [cleaned up].)

Plaintiff alleges Defendants conspired to have Plaintiff hire House Next Door to perform home improvement which was to be funded by Equity Wave and for Equity Wave to obtain a $300,000 lien on Plaintiff’s property. (FAC ¶ 38.)

Equity Wave and Defendants are separate companies that were involved with separate loan transactions. (UMF No. 36.) Moreover, to the extent Plaintiff alleges conspiracy to defraud with respect to Synovus and GreenSky, Plaintiff fails to demonstrate a triable issue of material fact exists as to a fraud cause of action against these Defendants as discussed above.

Fourth Cause of Action for Elder Abuse

California Welfare & Institutions Code, section 15610.07, subdivision (a) defines “Abuse of an elder” as including financial abuse. “Financial abuse” of an elder includes when a person or entity takes or assists in taking real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Cal. Welf. & Inst. Code, § 15610.30, subd. (a).

Plaintiff’s cause of action for elder abuse is based on the allegation Plaintiff’s loan agreement with Defendants was based on fraud. Specifically, Plaintiff alleges Defendants wrongfully appropriated money from Plaintiff through loan documents. (FAC ¶ 44.)

As Plaintiff fails to demonstrate a triable issue of material fact exists as to a fraud cause of action against these Defendants, Plaintiff also fails to demonstrate a triable issue of material fact exists as to the cause of action for elder abuse.

Sixth Cause of Action for Rescission

A contract may be extinguished by rescission. (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 913 [citing Civ. Code, § 1688].) “The court does not rescind contracts but only affords relief based on a party-effected rescission.” (Id. at p. 914.) “The circumstances that entitle a party to rescind are set forth in Civil Code section 1689, subdivision (b), which provides, in part, that a contracting party may unilaterally rescind the contract if: (1) ‘the consent of the party rescinding . . . was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.’” (Ibid.)

Plaintiff’s cause of action for rescission is based on the allegation Plaintiff’s loan agreement with Defendants was based on fraud.

Specifically, Plaintiff alleges, “the loan agreements which Defendants fraudulently obtained through their conspiracy should also be rescinded.” (FAC ¶ 54.)

As Plaintiff fails to demonstrate a triable issue of material fact exists as to a fraud cause of action against these Defendants, Plaintiff also fails to demonstrate a triable issue of material fact exists as to the cause of action for rescission.

Seventh Cause of Action for Restitution

“Under the law of restitution, ‘[a]n individual is required to make restitution if he or she is unjustly enriched at the expense of another. A person is enriched if the person receives a benefit at another’s expense.’ . . . As a matter of law, an unjust enrichment claim does not lie where the parties have an enforceable express contract.” (Ibid. [cleaned up].) (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 [citations omitted].) bee

Plaintiff alleges Defendants have been unjustly enriched by receiving monies for work illegally performed and for which Plaintiff did not receive the benefit thereof. (FAC ¶ 57.)

As discussed above, the undisputed evidence demonstrates Synovus and GreenSky had no knowledge of House Next Door’s allegedly unlicensed status at the time it performed work at Plaintiff’s home. (UMF Nos. 9, 15, 23, 32.)

To the extent Plaintiff’s reference to “work illegally performed” includes allegations of fraud as to the loan agreement with Defendants, Plaintiff failed to demonstrate a triable issue of material fact exists as to its fraud cause of action for the reasons discussed above.

Accordingly, Plaintiff and has not met his burden of demonstrating a triable issue of material fact exists as to restitution.

Eighth Cause of Action for Violation of Business and Professions Code §17200 et seq.

Business and Professions Code section 17200 et seq., prohibits unfair competition, including unlawful, unfair or fraudulent business acts. (Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co. (1999) 20 Cal.4th 163, 180.) “By proscribing ‘any unlawful’ business practice, ‘section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable.” (Ibid. [citations omitted].) Virtually any law or regulation can serve as predicate for a section 17200 “unlawful” violation. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 681 [citation omitted].)

This cause of action fails for the reasons discussed above, that is, Defendants had no knowledge of House Next Door’s allegedly unlicensed status at the time it performed work at Plaintiff’s home. (UMF Nos. 9, 15, 23 32.)

Additionally, Plaintiff and his wife applied for a line of credit through the GreenSky program on 3/31/17. (UMF No. 24.) Plaintiff subsequently accepted the benefit of more than $30,000 in loan proceeds for work performed by House Next Door and made no less than 33 payments to GreenSky under the loan over a period of three years. (UMF Nos. 25, 26.)

Accordingly, while the burden has shifted to Plaintiff, Plaintiff has not met his burden of demonstrating a triable issue of material fact exists as to a cause of action for violation of Business and Professions Code §17200 et seq.

First Cause of Action for Breach of Contract

“To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant’s breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307 [citation omitted].)

Plaintiff alleges Defendants departed from accepted trade standards, failed to complete the project for the contract price, and entered into a contract as an unlicensed contractor. (FAC ¶ 21.)

This cause of action is brought against House Next Door and Does 1 through 10. To the extent Synovus, identified as Doe 1, is included in this cause of action, Plaintiff has not met his burden of demonstrating a triable issue of material fact exists as to the breach of contract cause of action as to Synovus.

The undisputed evidence demonstrates Synovus was not a party to the contract between Plaintiff and House Next Door, was not responsible for performing any of the work on Plaintiff’s house and had nothing to do with the actual construction work performed at Plaintiff’s house. (UMF Nos. 40, 41.)

Plaintiff has not opposed the motion and therefore presents no evidence demonstrating the breach of any contract relating to construction work performed on Plaintiff’s property by Defendants.

Fifth Cause of Action for Negligence

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Woolard v. Regent Real Estate Services, Inc. (2024) 107 Cal.App.5th 783, 791 [citation omitted].)

Plaintiff alleges “Defendants breached their duty to provide construction work at Plaintiff’s residence according to acceptable industry standards and building code guidelines.” (FAC ¶ 49.)

As with the cause of action for breach of contract, Plaintiff’s negligence cause of action is also brought against House Next Door and Does 1 through 10. To the extent Synovus, identified as Doe 1, is included in this cause of action, Plaintiff has not met his burden of demonstrating a triable issue of material fact exists as to the negligence cause of action as to Synovus for the reasons discussed above.

The undisputed evidence demonstrates Synovus was not a party to the contract between Plaintiff and House Next Door, was not responsible for performing any of the work on Plaintiff’s house and had nothing to do with the actual construction work performed at Plaintiff’s house. (UMF Nos. 40, 41.)

Plaintiff has not opposed the motion and therefore presents no evidence demonstrating the breach of any duty by Defendants relating to construction work performed on Plaintiff’s property.

Based on the above, the Court GRANTS Defendants GreenSky, LLC and Synovus Bank’s Motion for Summary Judgment.

16. LAW OFFICES OF MARK B. PLUMMER, PC VS. NETWORKSOLUTIONS.COM 2020-01141868 MOTION FOR JUDGMENT ON THE PLEADINGS

Defendant Nili Alai’s Motion for Judgment on the Pleadings as to Plaintiffs’ First Amended Complaint (FAC) is DENIED.

In the Motion, Defendant argues as follows:

“Plaintiffs’ First Cause of Action for Defamation fails because the First Amended Complaint does not plead the allegedly defamatory statements with the specificity required under California law, including the exact words alleged to be defamatory, the context in which the alleged statements appeared, the date of publication, the alleged publisher of any specific statement, and facts sufficient to establish falsity as to any specifically identified statement. Plaintiffs’ Fourth Cause of Action for Declaratory Relief fails because it is derivative of the defective defamation claim and does not state an independent basis for relief.” (Motion, p. 1.)

Defendant contends that allegedly defamatory words must be pled with specificity. (Motion, pp. 5-6.) Here, Defendant argues, “The FAC does not satisfy this basic pleading requirement. Plaintiffs do not quote the alleged website statements. Plaintiffs do not attach the alleged statements. Plaintiffs do not identify the alleged website by name in the FAC. Plaintiffs do not identify the complete context in which the alleged statements appeared, the date of publication, or the alleged publisher of any specific statement.” (Id. at p. 6.)