Regions Bank vs. Totorica Plumbing, Inc.

In this case, the Complaint merely alleges Buffalo Wild Wings, Inc. was Plaintiff’s joint employer or alter ego of defendant SC Wings Buena Park, LLC. However, there are no facts alleged to support this conclusion. Therefore, Plaintiff has not sufficiently alleged facts that Buffalo Wild Wings is liable as a joint employer.

Accordingly, the demurrer to the twelfth cause of action is SUSTAINED.

Plaintiff has 15 days leave to amend.

Moving Parties shall give notice.

2 Regions Bank vs. Motion for Summary Judgment and/or Totorica Plumbing, Inc. Adjudication

2025-01516311 Plaintiff Regions Bank dba Ascentium Capital’s Motion for Summary Judgment is GRANTED.

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (fn omitted).)

Code of Civil Procedure section 437c, subdivision (p)(2) states, “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause

of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or crosscomplainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” Once the defendant has met this burden, the burden shifts to the plaintiff to show 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).)

First Cause of Action – Breach of Contract

The elements for a cause of action for breach of contract are: (1) the existence of a contract, (2) the plaintiff’s performance, (3) the defendant’s breach, and (4) damages. (Roth v. Malson (1998) 67 Cal.App.4th 552, 557.)

The elements are satisfied for Plaintiff’s breach of contract claims. First, Plaintiff has shown the existence of a valid contract, the Installment Payment Agreement, between itself and Totorica Plumbing. (Noon Decl., ¶ 3.) Second, Plaintiff performed all its obligations with respect to the Agreement by paying the vendor for the equipment on Totorica Plumbing’s behalf. (Noon Decl., ¶¶ 5, 6.) Third, Totorica Plumbing defaulted under the terms of the Agreement by failing to timely make payments per the loans terms, and failing to pay the entire outstanding balances. (Noon Decl., ¶¶ 8, 9.) Fourth, as a result of Totorica Plumbing’s failure to repay the amount due, Plaintiff has been damaged in the amount of no less than $75,022.19. (Noon Decl., ¶ 9.)

Defendants do not dispute Plaintiff’s material facts. Rather, they oppose the motion by attacking the declaration of Jerry Noon, Vice President of Asset Management for Regions

Bank, as lacking personal knowledge to authenticate the loan documents.

The business records exception set forth under Evidence Code §1271, states as follows: “[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule, when offered to prove the act, condition or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition or event; (c) The custodian or other qualified witness testifies to its identify and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

“A trial court has wide discretion in determining whether a qualified witness possesses sufficient personal knowledge of the identity and mode of preparation of documents for purposes of the business records exception. Indeed, any qualified witness who is knowledgeable about the documents may lay the foundation for introduction of business records – the witness need not be the custodian or the person who created the record...or one with personal knowledge in order for a record to be admissible under the hearsay exception.” (Estate of O’Connor (2017) 16 Cal.App.5th 159, 170.)

Here, Mr. Noon has testified via his declaration that he is the Vice President of Asset Management for Regions Bank, and the records and files related to this action are kept in his custody and under my direction and supervision in the regular course of business.. (Noon Decl., ¶ 2.) Furthermore, Mr. Noon states that the business records “were made by Plaintiff’s employees in the ordinary course of business at or near the time of the event described or recorded in such records.” (Ibid.)

Mr. Noon also testified that he is personally familiar with the identity, mode of preparation, source of information, method

and time of preparation of such records. (Ibid.) He has personally worked on such books, records and files. (Ibid.)

The Court finds Defendants hearsay claim is without merit and Mr. Noon has sufficiently established the loan documents and guaranty are admissible under the business record exception to the hearsay rule.

Defendants next argue that Mr. Noon does not lay the foundation to properly authenticate the electronic signature of Defendant Frank.

In Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, the court affirmed the denial of a petition to compel arbitration because the petitioner failed to prove by a preponderance of the evidence that plaintiff electronically signed the subject argument. (Id. at 1063). The court found that defendant only summarily asserted that plaintiff entered into a contract, but did not state anywhere in his declaration that plaintiff actually signed the contract, electronically or otherwise. (Id. at 1069).

Fabian is easily distinguished from the present case because the defendant in that case submitted evidence to challenge the authenticity of the electronic signatures. Further, the court in Fabian held that the party met its initial evidentiary burden, but because the party challenging the authenticity of the electronic signature declared that she did not sign the contract, the other party then had “the burden of proving by a preponderance of the evidence that the electronic signature was authentic.” (Id. at 1067.)

In this case, Defendant Frank does not deny executing the loan documents on behalf of Totorica Plumbing and guaranty. Defendant Frank has submitted no evidence to challenge the authenticity of his electronic signature. He has offered no declaration contesting his electronic signature nor does he claim he did not sign the documents.

Thus, Defendants have failed to raise a triable issue of material fact as to any elements of the cause of action for breach of contract. Accordingly, the motion is GRANTED as to the first cause of action.

Second Cause of Action – Breach of Guaranty

As to Plaintiff’s breach of guaranty claim, the elements are the same as those for breach of contract, and have also been satisfied.

First, Defendant Frank executed a personal guaranty for the indebtedness of Totorica Plumbing. (Noon Decl., ¶ 4.) Second, Plaintiff performed its obligations under the Agreement and Guaranty. (Noon Decl., ¶¶ 5, 6.) Third, Totorica Plumbing defaulted under the terms of the Agreement and Guaranty by failing to timely make payments per the loans terms, and failing to pay the entire outstanding balance. (Noon Decl., ¶ 8.) Fourth, Defendant Frank’s failure to pay the full repayment amount is a breach of the Guaranties, resulting in no less than $75,022.19 in damages to Plaintiff.

As stated above, Defendants objections to Mr. Noon’s declaration are without merit.

Therefore, Defendants have failed to raise a triable issue of material fact as to any elements of the cause of action for breach of guaranty. Accordingly, the motion is GRANTED as to the second cause of action.

Third Cause of Action – Money Lent

A claim for money lent is one of the common counts. (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797.809.) “A common count claim broadly applies wherever one person has received money which belongs to another, and which in equity and good conscience, or in other words, in justice and right, should be returned.” (Ibid. [cleanedup].)

Here, Plaintiff paid the vendor for equipment Totorica Plumbing, Inc.’s business. Defendants failed to pay Plaintiff for all the

amounts due for money lent to purchase the equipment and have been damaged.

Defendants do not dispute these facts.

Therefore, no triable issue of material fact exists as to the claim for money lent. Accordingly, the motion is GRANTED as to the third cause of action.

Fourth Cause of Action – Possession of Personal Property

An action for recovery of personal property is a Code based cause of action with damages in a proper case for its detention. (See Eleanor Licensing LLC v. Class Recreations LLC (2018) 21 Cal.App.5th 599, 612; Code Civ. Proc. § 627.)

Here, Defendants are in default of the Agreement. The Agreement provides that upon default Plaintiff may take possession of the equipment. Defendants have not surrendered the equipment, despite Plaintiff’s demand.

Defendants do not dispute these facts.

Therefore, no triable issue of material fact exists as to the claim for possession of personal property. Accordingly, the motion is GRANTED as to the fourth cause of action.

Because the motion disposes of all the claims brought by Plaintiffs against Defendants, summary judgment is appropriate. (Civ. Proc. Code 437c, subd. (c); All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954.)

Plaintiff to submit a proposed judgment consistent with this order.

Plaintiff shall give notice.