Legal Recovery v. Eng CA1/2

Filed 9/28/16 Legal Recovery v. Eng CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

LEGAL RECOVERY, LLC, Plaintiff and Respondent, A146332 v. MARTIN LEE ENG, (San Francisco County Super. Ct. No. CGC-14-542378) Defendant and Appellant.

In this collection action brought on four promissory notes, the trial court granted summary judgment for the plaintiff. The debtor, defendant Martin Lee Eng, now appeals, contending the court erred in granting summary judgment against him because the plaintiff did not prove as a matter of law that a demand for payment had ever been made. We affirm. BACKGROUND On October 27, 2014, Plaintiff Legal Recovery, LLC initiated this action against Eng by filing a verified complaint for breach of contract alleging non-payment of four promissory notes that had been assigned to plaintiff for collection, and seeking as damages approximately $1.4 million in principal and accrued interest. Each note was payable on demand. The verified complaint alleged in paragraph ten the original lenders “had demanded payment on the notes, but Eng has not paid any sum on the principles or interests [sic]” that had accrued, and that the notes “are now due and payable in full.” In his verified answer, Eng responded to paragraph ten as follows: “Defendant denies the

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allegations set forth in paragraph 10 on the basis that the promissory notes are fraudulent.” Thereafter, plaintiff moved for summary judgment. Eng, representing himself, opposed the motion on four grounds: he contended the notes were fraudulent and he had never entered into them, the action was barred by the statute of limitations, the debt had been discharged by the bankruptcy of his co-defendant,1 and ethical violations by plaintiff’s counsel, who formerly represented Eng too, precluded an action on the notes. Eng filed a separate statement of material facts but no supporting evidence.2 The trial court granted the motion, and the following day entered judgment against Eng in plaintiff’s favor. After filing unsuccessful post-judgment motions in an effort to set aside the summary judgment ruling, Eng initiated this timely appeal from the judgment.3 DISCUSSION Summary judgment is appropriate when “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 plaintiff may meet