This case was last updated from Los Angeles County Superior Courts on 11/10/2020 at 06:36:25 (UTC).

FOREMAN FINANCIAL INC. VS VICTOR LUCERO

Case Summary

On 07/30/2018 FOREMAN FINANCIAL INC filed a Contract - Other Contract lawsuit against VICTOR LUCERO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0065

  • Filing Date:

    07/30/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff and Respondent

FOREMAN FINANCIAL INC.

Defendant and Appellant

LUCERO VICTOR DBA BLUE DIAMOND AUTO

Attorney/Law Firm Details

Plaintiff Attorneys

LEVENTHAL JONATHAN DAVID

SIFERS JAMES STEVEN

Defendant Attorney

SKLAR JULIA

 

Court Documents

Appeal - Ntc Designating Record of Appeal APP-003/010/103 - Appeal - Ntc Designating Record of Appeal APP-003/010/103

10/8/2020: Appeal - Ntc Designating Record of Appeal APP-003/010/103 - Appeal - Ntc Designating Record of Appeal APP-003/010/103

Appeal - Notice of Appeal/Cross Appeal Filed - Appeal - Notice of Appeal/Cross Appeal Filed

10/8/2020: Appeal - Notice of Appeal/Cross Appeal Filed - Appeal - Notice of Appeal/Cross Appeal Filed

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest - Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

10/14/2020: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest - Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Minute Order - Minute Order (Hearing on Motion for Summary Judgment; Non-Appearance Case R...)

7/8/2020: Minute Order - Minute Order (Hearing on Motion for Summary Judgment; Non-Appearance Case R...)

Declaration (name extension) - Declaration of Jose Fuentes in Support of Plaintiffs Reply to Defendant's Opposition to Motion for Summary Judgment

7/2/2020: Declaration (name extension) - Declaration of Jose Fuentes in Support of Plaintiffs Reply to Defendant's Opposition to Motion for Summary Judgment

Reply (name extension) - Reply Plantiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment

7/2/2020: Reply (name extension) - Reply Plantiff's Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment

Ex Parte Application (name extension) - Ex Parte Application Ex Parte Application for Right to Attach Order and Order for Issuance of Writ of Attachment as to Blue Diamond

3/6/2020: Ex Parte Application (name extension) - Ex Parte Application Ex Parte Application for Right to Attach Order and Order for Issuance of Writ of Attachment as to Blue Diamond

Declaration in Support of Ex Parte Application - Declaration in Support of Ex Parte Application

3/6/2020: Declaration in Support of Ex Parte Application - Declaration in Support of Ex Parte Application

Memorandum of Points & Authorities - Memorandum of Points & Authorities

3/6/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Exhibit List - Exhibit List

1/21/2020: Exhibit List - Exhibit List

Minute Order - Minute Order (Hearing on Ex Parte Application to Specially Set the Hearing ...)

1/23/2020: Minute Order - Minute Order (Hearing on Ex Parte Application to Specially Set the Hearing ...)

Ex Parte Application (name extension) - Ex Parte Application to Specially Set the Hearing Date for Plaintiff's MSJ

1/23/2020: Ex Parte Application (name extension) - Ex Parte Application to Specially Set the Hearing Date for Plaintiff's MSJ

Statement of the Case - Statement of the Case

9/26/2019: Statement of the Case - Statement of the Case

Reply (name extension) - Reply Reply to Defendant's Opposition to Plaintiff's Application for Writ of Attachment

6/10/2019: Reply (name extension) - Reply Reply to Defendant's Opposition to Plaintiff's Application for Writ of Attachment

Minute Order - Minute Order (Hearing on Application for Writ of Attachment (CCP 484.040))

6/12/2019: Minute Order - Minute Order (Hearing on Application for Writ of Attachment (CCP 484.040))

Answer

10/9/2018: Answer

Proof of Personal Service

8/16/2018: Proof of Personal Service

Civil Case Cover Sheet

7/30/2018: Civil Case Cover Sheet

49 More Documents Available

 

Docket Entries

  • 05/03/2021
  • Hearing05/03/2021 at 10:00 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Attorney Fees

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  • 11/06/2020
  • DocketAppeal - Notice of Fees Due for Clerk's Transcript on Appeal BV034227; Filed by: Clerk

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  • 10/19/2020
  • DocketWrit of Execution (Orange); Issued by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant); County: Orange

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  • 10/16/2020
  • DocketHearing on Motion for Attorney Fees scheduled for 05/03/2021 at 10:00 AM in Spring Street Courthouse at Department 26

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  • 10/15/2020
  • DocketAppeal - Notice of Filing of Notice of Appeal; Filed by: Clerk

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  • 10/15/2020
  • DocketMotion for Attorney Fees; Filed by: Foreman Financial INC. (Plaintiff)

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  • 10/14/2020
  • DocketMemorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; Filed by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant); Costs: 2223.54; Interest: 196.83; Service Date: 10/14/2020

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  • 10/08/2020
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by: Victor Lucero (Appellant); As to: Foreman Financial INC. (Respondent); To be paid at Central: No

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  • 10/08/2020
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by: Victor Lucero (Defendant)

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  • 10/08/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: Victor Lucero (Defendant); As to: Foreman Financial INC. (Plaintiff)

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73 More Docket Entries
  • 09/17/2018
  • DocketDefault entered as to Victor Lucero; On the Complaint filed by Foreman Financial INC. on 07/30/2018

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  • 09/17/2018
  • DocketRequest for Entry of Default / Judgment; Filed by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant)

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  • 08/16/2018
  • DocketProof of Personal Service; Filed by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant); Service Date: 08/09/18; Service Cost: 79.00; Service Cost Waived: No

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  • 07/30/2018
  • DocketComplaint; Filed by: Foreman Financial INC. (Plaintiff); As to: Victor Lucero (Defendant)

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  • 07/30/2018
  • DocketCivil Case Cover Sheet; Filed by: Foreman Financial INC. (Plaintiff)

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  • 07/30/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 07/30/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 07/30/2018
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 07/30/2018
  • DocketNon-Jury Trial scheduled for 01/27/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/30/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 08/02/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC10065    Hearing Date: July 08, 2020    Dept: 26

Foreman Financial, Inc. v. Lucero, et al.

MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Foreman Financial, Inc.’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED.

ANALYSIS:

On July 30, 2018, Plaintiff Foreman Financial, Inc. (“Plaintiff”) filed the instant action for breach of contract against Defendant Victor Lucero dba Blue Diamond Auto (“Defendant”). On January 21, 2020, Plaintiff filed the instant Motion for Summary Judgment against Defendant. On April 14, 2020, Defendant filed its opposition to the Motion for Summary Judgment and Plaintiff replied on July 2, 2020.

Discussion

The Complaint alleges that on March 2, 2016, Plaintiff and Defendant entered into a Master Dealer Agreement (“the MDA”), which was personally guaranteed by Defendant in his individual capacity. (Compl., ¶BC-1 and Exhs. A-B.) Plaintiff allegedly assigned Defendant a Retail Installment Sales Contract on a 2009 Nissan Altima (“the Realegeno RISC”), which Defendant refused to repurchase on June 17, 2018. (Id. at ¶BC-2, pp. 1-3.) Plaintiff allegedly assigned Defendant a Retail Installment Sales Contract (“the Diggs RISC”) on a 2013 Chevrolet Malibu LT, which Defendant refused to repurchase on July 29, 2017. (Id. at ¶BC-2, pp. 4-6.) As a result, Plaintiff suffered damages from the customers’ defaults, which the MDA was intended to protect against. (Id. at ¶BC-2, pp. 1-6.)

In order to prevail on a claim for breach of contract, Plaintiff must demonstrate (1) existence of contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Plaintiff moves for summary judgment or adjudication on the grounds that it is undisputed Defendant failed repurchase the aforementioned RISCs and failed to make payment as required, in breach of the Agreement.

Plaintiff’s Initial Burden of Proof

In support of the Motion, Plaintiff presents the following evidence.[1] Plaintiff is in the business of providing financing to qualified individuals for the purchase of motor vehicles. (Motion, Separate Statement of Facts No. 1; Fuentes Decl., ¶2.) Plaintiff routinely purchases financing agreements from automobile dealers. (Motion, Separate Statement of Facts No. 2; Fuentes Decl., ¶2.) On March 2, 2016, Plaintiff entered into a Master Dealer Agreement (“MDA”) with Defendant. (Motion, Separate Statement of Facts No. 3; Fuentes Decl., ¶3 and Exh. 1.) The MDA was personally guaranteed by Defendant pursuant to a written “Continuing Guaranty” executed on the same date. (Motion, Separate Statement of Facts No. 4; Fuentes Decl., ¶4 and Exh. 2.) The MDA provides that Defendant is obligated to make “payment equal to the amount of the check which was issued from Plaintiff to Defendant” on or before its contractual due date. (Motion, Separate Statement of Facts No. 5; Fuentes Decl., ¶5 and Exh. 1 at ¶4.)

1. The Realegeno RISC

In November, 2017, Defendant assigned Plaintiff its rights under the Realegeno RISC for purchase of a 2009 Nissan Altima. (Motion, Separate Statement of Facts Nos. 7-8; Fuentes Decl., ¶¶7-8 and Exhs. 3-4.) Plaintiff accepted the Realegeno RISC under a five-payment default basis. (Motion, Separate Statement of Facts Nos. 8-9; Fuentes Decl., ¶¶8-9 and Exhs. 1, 4.) This meant that if the customer defaulted on the Realegeno RISC within five payment periods (five months), Defendant was obligated to repurchase the RISC. (Motion, Separate Statement of Facts No. 9; Foreman Decl., ¶9 and Exhs. 1, 4.) Plaintiff made payment to Defendant under the terms of the MDA. (Motion, Separate Statement of Facts No. 10; Fuentes Decl., ¶10.) Following the customer’s failure to make full payment on the fifth term, Plaintiff demanded Defendant repurchase the Realegeno RISC on April 23, 2018. (Motion, Separate Statement of Facts Nos. 11-15; Foreman Decl., ¶¶11-15 and Exhs. 3, 5, 7.)

The customer’s failure to make the fifth payment was due to an additional Loss Damages Waiver (“LDW”) charge following the cancellation of the customer’s car insurance. (Motion, Separate Statement of Facts Nos. 11; Fuentes Decl., ¶11 and Exh. 3.) Plaintiff sent another demand on May 8, 2018. (Motion, Separate Statement of Facts No. 16; Foreman Decl., ¶16 and Exh. 8.) Additional notices were sent on May 11, 2018 and June 11, 2018. (Motion, Separate Statement of Facts No2. 17-18; Foreman Decl., ¶¶17-18 and Exhs. 9-10.) The amount outstanding on the Realegeno RISC is $7,470.90, plus $2,741.31 interest (based on a rate of $4.29 per day). (Motion, Separate Statement of Facts No. 30; Fuentes Decl., ¶28.)

2. The Diggs RISC

In December, 2017, Defendant assigned Plaintiff its rights under a RISC for purchase of a 2013 Chevrolet Malibu. (Motion, Separate Statement of Facts Nos. 20-21; Fuentes Decl., ¶¶20-21 and Exhs. 1, 12-13.) Plaintiff accepted the Diggs RISC under a three-payment default basis. (Motion, Separate Statement of Facts No. 21; Fuentes Decl., ¶21 and Exhs. 1, 13.) This meant that if the customer defaulted on the RISC within three payment periods (three months), Defendant was obligated to repurchase the RISC. (Motion, Separate Statement of Facts No. 22; Foreman Decl., ¶21 and Exh. 13.) Plaintiff made payment to Defendant under the terms of the MDA. (Motion, Separate Statement of Facts No. 23; Fuentes Decl., ¶22.) Under the terms of the RISC, the customer agreed to pay Plaintiff all amounts owed thereunder in the event the 2013 Chevrolet Malibu was damaged, destroyed or missing. (Motion, Separate Statement of Facts No. 24; Fuentes Decl., ¶23 and Exh. 12.)

The 2013 Chevrolet Malibu was involved an accident on December 27, 2019. (Motion, Separate Statement of Facts No. 25; Fuentes Decl., ¶24 and Exh. 14.) The customer made first payment under the RISC on January 22, 2018 but made no payments thereafter. (Motion, Separate Statement of Facts No. 25; Fuentes Decl., ¶24 and Exh. 14.) Following the customer’s failure to make payment after the first term, Plaintiff demanded Defendant repurchase the Diggs RISC on April 15, 2018. (Motion, Separate Statement of Facts Nos. 25-29; Foreman Decl., ¶¶24-31 and Exhs. 14-18.) Great Western Insurance Company paid Plaintiff $6,942.49 after declaring the 2013 Chevrolet Malibu a total loss and Plaintiff applied that amount to the customer’s account. (Motion, Separate Statement of Facts No. 26; Fuentes Decl., ¶25 and Exh. 15.) The amount outstanding on the Diggs RISC is $3,477.00, plus $1,278.00 interest (based on a rate of $2.00 per day). (Motion, Separate Statement of Facts No. 31; Fuentes Decl., ¶29.)

Based on the evidence presented, Plaintiff has carried its initial burden of proof to demonstrate Defendant’s breach of the parties’ MDA. The burden now shifts to Defendant to create a triable issue of material fact regarding Plaintiff’s inability to prove the elements of its cause of action or the viability of an affirmative defense.

Defendant’s Burden of Proof in Opposition

1. The Realegeno RISC

In opposition, Defendant argues that there are triable issues of material fact regarding whether Plaintiff had proper grounds for the repossession of the 2009 Nissan Altima, such that Defendant’s obligations under the MDA were not triggered. Defendant argues that (1) Plaintiff did not give the customer proper notice of the amount owing and opportunity to cure as required by the RISC; and (2) the LDW charge should not have been included in the amount owing under the RISC, nor given rise to the customer’s default.

Defendant’s evidence does not raise a triable issue of material fact regarding Plaintiff’s right to repossess the 2009 Nissan Altima. First, the statutes on which Defendant relies to contend that Plaintiff was required to give the customer notice of the correct amount of the default, Civil Code section 2983.2, subdivision (a), only requires notice of intent to dispose a repossessed vehicle. (Civ. Code, § 2983.2, subd. (a).) In fact, the statute is entitled “Disposition after repossession …” demonstrating that notice prior to repossession of the vehicle, which are the facts of this case, is not required thereunder.

Nor has Defendant shown that Plaintiff incorrectly added the LDW charge to the fifth payment owed by the customer. Under section 1(b) of the RISC, Plaintiff was entitled to add the LDW charge to the amount owed: “We may apply each payment to the earned and unpaid part of the Finance Charge, to the unpaid part of the Amount Financed and to other amounts you owe under this contract in any order we

Choose.” (Citing Motion, Exh. 3, ¶1(b).) Under paragraph 2(d), the purchaser is required to have insurance on the vehicle and upon failing to do so, is liable for the insurance obtained by Plaintiff. (Motion, Exh. 3, ¶2(d).) Plaintiff demonstrated that it charged the customer $55.00 each month without insurance for a total LDW charge of $275.00, which remained unpaid. (Motion, Fuentes Decl., ¶12 and Exhs. 5, 18-19.)

Therefore, Defendant has not shown that triable issues of material fact exist as to the triggering of its obligations under the MDA.

2. The Diggs RISC

With respect to the default on the 2013 Chevrolet Malibu, Defendant argues that customer purchased GAP insurance, which waived any amount owed under the RISC in the event the vehicle was totaled prior to completion of the RISC. Defendant contends that since any amount still owing after payment from Great Western was waived, triable issues of material fact exist as to whether the customer was ever in default on the RISC and whether Defendant’s obligation to repurchase the RISC was triggered.

Plaintiff’s Motion admits that the customer purchased GAP insurance from Defendant, for which $1,484.33 in additional charges were added to the amount owing under the Diggs RISC. (Motion, Fuentes Decl., ¶26 and Exh. 21.) The customer entered into the Diggs RISC on December 18, 2017 and the vehicle was involved in an accident on December 27, 2017. (Id. at ¶¶20, 24.) The customer only made one payment on the Diggs RISC on January 22, 2017. (Id. at ¶24.)

The Diggs RISC itself only refers to the existence of GAP Insurance in the abstract: “In the event of theft or damage to your vehicle that results in a total loss, there may be a gap between the amount you owe under the contract and the proceeds of your insurance settlement and deductible. The contract provides that you are liable for the gap amount. An optional debt cancellation agreement for coverage of the gap amount may be offered for an additional charge.” (Id. at Exh. 12, ¶2(a).) While the GAP Insurance agreement is between Defendant and Diggs, it obligates Plaintiff (lienholder) “to waive the unpaid net balance remaining due to a physical damage constructive total loss” of the vehicle. (Id. at Exh. 21.)

Defendant has not demonstrated triable issues of material fact regarding whether the waiver of the unpaid net balance remaining on Diggs’ RISC also waived Defendant’s obligation to repurchase the RISC. Ultimately, Defendant has not provided any evidence that its contractual relationship with Plaintiff is controlled by anything other than the MDA. No provision of the GAP Insurance Agreement indicates that the parties’ obligations to each other under the MDA are altered by the customer’s purchase of GAP Insurance. Indeed, the MDA contains an integration clause that states “[t]his Agreement supersedes any and all previous agreements between Dealer and Foreman and together with the exhibits attached hereto and incorporated herein by reference, constitutes the entire agreement between the parties.” (Motion, Exh. 1, ¶29.)

The court determines whether the parties intended the contract to be a final and complete expression of their agreement. (Code Civ. Proc., § 1856, subd. (d).) “The crucial issue in determining whether there has been an integration is whether the parties intended their writing to serve as the exclusive embodiment of their agreement. The instrument itself may help to resolve that issue.” (Masterson v. Sine (1968) 68 Cal.2d 222, 225, 65 Cal.Rptr. 545, 436 P.2d 561.) The existence of an integration clause is a key factor in divining that intent. (See Founding Members, supra, 109 Cal.App.4th at pp. 953–954, 135 Cal.Rptr.2d 505.) “This type of clause has been held conclusive on the issue of integration, so that parol evidence to show that the parties did not intend the writing to constitute the sole agreement will be excluded.

(Grey v. American Management Services (2012) 204 Cal.App.4th 803, 807.) The integration clause demonstrates that the terms of the GAP Insurance Agreement have no bearing on the MDA or the parties’ obligations thereunder.

Therefore, Defendant has not carried its burden of proof to show that triable issues of material fact exist as to its liability to Plaintiff under the MDA.

Conclusion

Based on the foregoing, Plaintiff Foreman Financial, Inc.’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is GRANTED.

Moving party to give notice.

*Hearing may be heard at 2:30 p.m.  Please email clerk at 8:30: <SSCdept26@LACourt.org>


[1] Plaintiff’s Separate Statement of Facts incorrectly refers to the supporting declaration as the “Foreman Declaration” when it is in fact the Fuentes Declaration.