Plaintiff Comerica Bank?s motion for summary adjudication of its third cause of action for breach of guarantee against defendant Christopher Scott Barton is granted.
The elements for a breach of guaranty cause of action are:? (1) the guarantor guaranteed payment of a third party?s indebtedness; (2) the third party defaulted; (3) the guarantor was notified of the default and payment was demanded; and (4) the guarantor did not make payment.? Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal. App. 4th 1532, 1546-47.
First Element ? existence of underlying loan and guaranty
Comerica has presented evidence of the loan, forbearance agreement, and the guarantees, and the amounts due.? [Martinez Decl., ?? 5, 6, 9, 10, 11, 12, 13, 15, 17, 20, 22 and Exs. 1, 2, 4, and 5; and Tiberi Decl., Exs. 6 and 7 at RFA nos. 1-3.]
Second Element — third party default
Comerica has presented evidence that Digital Color Graphics failed to make the payments due under the note and forbearance.? [Martinez Decl., ?? 10-13, 20 and Ex. 5.]
Third Element ? demand made of guarantor
While Comerica has not presented evidence of prior demand on Defendant specifically [see Martinez Decl., ?? 13 and 18], the filing and serving of the complaint in this action is essentially a demand.
Fourth Element ? failure to pay by guarantor
Comerica has presented evidence of Barton?s failure to pay the amounts due.? [Martinez Decl., ? 18.]
Comerica has therefore made a prima facie showing as to the existence of and breach of the guarantees of the loan and forbearance, and Comerica?s damages.? In the absence of any opposition, no triable issue of fact has been shown.
Comerica may seek recovery of costs on a memorandum of costs after judgment is entered.
Moving party to give notice.