| Plaintiff Cuong H. Do moves for summary judgment as to his Complaint for breach of promissory note against defendant Eileen Cambe.
Code of Civil Procedure ?437c(p)(1), which states: ?A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant 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.? Here, the cause of action alleged is breach of a promissory note, which is the breach of a written contract.??See FPI Development, Inc. v. Nakashima?(1991) 231 Cal.App.3d 367, 383. ??In such an action the plaintiff must plead the existence of a contract, its terms which establish the obligation in issue, the occurrence of any conditions precedent to enforcement of the obligation, and the breach of that obligation. [citation omitted] In a simple action on a note the allegation of execution of the note alleges the existence of a contract, the incorporation of a copy of the note alleges its terms and the allegation of nonpayment in accordance with those terms alleges a breach.???Id.? In addition, plaintiff has to allege resulting damage from the breach.??See Richman v. Hartley?(2014) 224 Cal.App.4th 1182, 1186.
Here, plaintiff claims that Cambe executed the Note on 09/20/15 in his favor, in the amount of $100K.? (Compl., ?8.)? He incorporates a copy of the Note by reference.? (Id.)? He alleges that he has performed all conditions required to be performed and all conditions precedent to the right to enforce the obligation.? (Id., ?14.)? He further alleges that defendant has failed to pay as required.? (Id., ??10-11.)? As a result, there is an unpaid principal balance of $100,000, plus accrued interest of $2,493.15.? (Id., ??15-16.)
However, the Promissory Note contains handwritten notations (which appear to be in defendant?s handwriting, based on her signature) that potentially change its terms.? (See Do Decl., Ex. A.)? First, the term ?interest? has scribble marks through it.? Second, the date for the beginning of the second set of monthly installments was changed from April 30, 2016 to ?April 30, 2017.?? (Ibid.)? Plaintiff offers no explanation for these notations, and indeed, seems to pretend they are not there.? The Promissory Note is not an integrated agreement.? Furthermore, the deposition testimony by Ms. Cambe as set forth by Plaintiff shows that defendant disputes the timeline for repayment of the loan.? She testified that her understanding was that payments were supposed to begin on 09/30/16, rather than 09/30/15.? (Sparks Decl., Ex. A at 332:2.)? She also testified that, even though the document stated 2015, they had simply ?forgot[ten] to change the date.?? (Id. at 332:21-23.)
So, according to the testimony provided, and the Promissory Note itself, there appears a triable issue of material fact as to when the payments on the Promissory Note actually became due.
Accordingly, the Court DENIES the unopposed motion by plaintiff Cuong H. Do for summary judgment as to his Complaint for breach of promissory note against defendant Eileen Cambe.? Plaintiff?s own evidence reflects that there is a triable issue of material fact regarding the terms of the parties? agreement.? That is, the Promissory Note contains unexplained handwritten notations regarding interest, and the dates for installment payments.? (Do Decl., Ex. A.)? Moreover, defendant?s deposition testimony reveals that she seemingly disputes the timeline for payments ? and therefore whether payments were due at all at the time plaintiff filed the present lawsuit.? (Sparks Decl., Ex. A at 331:2-333:4.)? Accordingly, the Court finds that plaintiff failed to meet his moving burden.? The motion is DENIED.
Clerk to give notice. |