This case was last updated from Los Angeles County Superior Courts on 11/21/2020 at 06:04:17 (UTC).

HANMI BANK VS DBS ENTERTAINMENT PRODUCTIONS, INC., ET AL.

Case Summary

On 07/01/2019 HANMI BANK filed a Contract - Other Contract lawsuit against DBS ENTERTAINMENT PRODUCTIONS, INC . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6202

  • Filing Date:

    07/01/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

HANMI BANK

Defendants

DBS ENTERTAINMENT PRODUCTIONS INC.

JACOBS GARY

Attorney/Law Firm Details

Plaintiff Attorney

SCOTT MARK

 

Court Documents

Notice (name extension) - Notice OF CONTINUED HEARING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

11/4/2020: Notice (name extension) - Notice OF CONTINUED HEARING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

11/19/2020: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

Notice (name extension) - Notice OF CONTINUED HEARING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

9/4/2020: Notice (name extension) - Notice OF CONTINUED HEARING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 10/26/2020

10/26/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 10/26/2020

Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

10/26/2020: Minute Order - Minute Order (Hearing on Motion for Summary Judgment)

Objection (name extension) - Objection PLAINTIFFS OBJECTIONS TO DECLARATION OF DEFENDANT GARY JACOBS IN OPPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

8/13/2020: Objection (name extension) - Objection PLAINTIFFS OBJECTIONS TO DECLARATION OF DEFENDANT GARY JACOBS IN OPPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

Declaration (name extension) - Declaration SUPPLEMENTAL DECLARATION OF MATTHEW JACOBS IN SUPPORT OF PLAINTIFF HANMI BANKS MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES

8/13/2020: Declaration (name extension) - Declaration SUPPLEMENTAL DECLARATION OF MATTHEW JACOBS IN SUPPORT OF PLAINTIFF HANMI BANKS MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 08/18/2020

8/18/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Summary Judgment) of 08/18/2020

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

3/23/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Opposition (name extension) - Opposition DEFENDANT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT &/OR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS & AUTHORITIES; SEPARATE STATEMENT IN SUPPORT OF OPPOSITIO

3/23/2020: Opposition (name extension) - Opposition DEFENDANT'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT &/OR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS & AUTHORITIES; SEPARATE STATEMENT IN SUPPORT OF OPPOSITIO

Motion for Summary Judgment - Motion for Summary Judgment

1/22/2020: Motion for Summary Judgment - Motion for Summary Judgment

Notice (name extension) - Notice of Changed Location for Hearing on Plaintiff's Motion for Summary Judgment or, Alternatively, Summary Adjudication of Issues Against Defendants DBS Entertainment Produ

1/27/2020: Notice (name extension) - Notice of Changed Location for Hearing on Plaintiff's Motion for Summary Judgment or, Alternatively, Summary Adjudication of Issues Against Defendants DBS Entertainment Produ

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

9/27/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Service by Mail - Proof of Service by Mail

9/24/2019: Proof of Service by Mail - Proof of Service by Mail

Answer - Answer

9/24/2019: Answer - Answer

Civil Case Cover Sheet - Civil Case Cover Sheet

7/1/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

7/1/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

Summons - Summons on Complaint

7/1/2019: Summons - Summons on Complaint

19 More Documents Available

 

Docket Entries

  • 07/05/2022
  • Hearing07/05/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 12/28/2020
  • Hearing12/28/2020 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 11/19/2020
  • DocketMinute Order (Hearing on Motion for Summary Judgment)

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  • 11/19/2020
  • DocketHearing on Motion for Summary Judgment scheduled for 11/19/2020 at 10:00 AM in Spring Street Courthouse at Department 25 updated: Result Date to 11/19/2020; Result Type to Held

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  • 11/04/2020
  • DocketNotice OF CONTINUED HEARING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; Filed by: Hanmi Bank (Plaintiff); As to: DBS Entertainment Productions, Inc. (Defendant); Gary Jacobs (Defendant)

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  • 10/26/2020
  • DocketMinute Order (Hearing on Motion for Summary Judgment)

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  • 10/26/2020
  • DocketCertificate of Mailing for (Hearing on Motion for Summary Judgment) of 10/26/2020; Filed by: Clerk

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  • 10/26/2020
  • DocketOn the Court's own motion, Hearing on Motion for Summary Judgment scheduled for 10/26/2020 at 11:00 AM in Spring Street Courthouse at Department 25 Held - Continued was rescheduled to 11/19/2020 10:00 AM

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  • 10/13/2020
  • DocketDefendant's Supplemental Brief Opposing Summary Judgment or Summary Adjudication; Filed by: Gary Jacobs (Defendant)

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  • 09/04/2020
  • DocketNotice OF CONTINUED HEARING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; Filed by: Hanmi Bank (Plaintiff); As to: DBS Entertainment Productions, Inc. (Defendant); Gary Jacobs (Defendant)

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25 More Docket Entries
  • 07/31/2019
  • DocketProof of Service by Substituted Service; Filed by: Hanmi Bank (Plaintiff); As to: Gary Jacobs (Defendant); Proof of Mailing Date: 07/24/2019; Service Cost: 25.00; Service Cost Waived: No

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  • 07/03/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 07/05/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/03/2019
  • DocketNon-Jury Trial scheduled for 12/28/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 07/03/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 07/01/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 07/01/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 07/01/2019
  • DocketCivil Case Cover Sheet; Filed by: Hanmi Bank (Plaintiff); As to: DBS Entertainment Productions, Inc. (Defendant); Gary Jacobs (Defendant)

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  • 07/01/2019
  • DocketSummons on Complaint; Issued and Filed by: Hanmi Bank (Plaintiff); As to: DBS Entertainment Productions, Inc. (Defendant); Gary Jacobs (Defendant)

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  • 07/01/2019
  • DocketCivil Case Cover Sheet; Filed by: Hanmi Bank (Plaintiff); As to: DBS Entertainment Productions, Inc. (Defendant); Gary Jacobs (Defendant)

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  • 07/01/2019
  • DocketComplaint; Filed by: Hanmi Bank (Plaintiff); As to: DBS Entertainment Productions, Inc. (Defendant); Gary Jacobs (Defendant)

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Tentative Rulings

Case Number: 19STLC06202    Hearing Date: November 19, 2020    Dept: 25

HEARING DATE: Thu., November 19, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Hanmi Bank v. DBS Entertainment Productions, Inc., et al.

CASE NUMBER: 19STLC06202 COMPL. FILED: 07-01-19

NOTICE: OK DISC. C/O: 11-28-20

DISC. MOT. C/O: 12-13-20

TRIAL DATE: 12-28-20

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

MOVING PARTY: Plaintiff Hanmi Bank

RESP. PARTY: Defendant Gary Jacobs, in pro per

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

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Hanmi Bank’s request for summary adjudication is DENIED as to the first and fourth causes of action but is GRANTED as to the second cause of action.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on March 23, 2020 [ ] Late [ ] None

REPLY: Filed on August 13, 2020 [X] Late [ ] None

ANALYSIS:

  1. Background

On July 1, 2019, Plaintiff Hanmi Bank (“Plaintiff”) filed an action for breach of equipment financing agreement, recovery of personal property, conversion, and breach of guaranty against Defendants DBS Entertainment Productions, Inc. (“DBS”) and Gary Jacobs (“Jacobs”) (collectively, “Defendants”). Defendant Jacobs filed an Answer, in pro per, on September 24, 2019. Following Defendant DBS’ failure to answer, default was entered against it on September 27, 2019. Plaintiff dismissed its third cause of action for conversion on January 24, 2020. (1/16/20 Request for Dismissal.)

On January 22, 2020, Plaintiff filed the instant Motion for Summary Judgment or, in the Alternative, Summary Adjudication (the “Motion”). On March 23, 2020, Defendant Jacobs filed an Opposition, and on August 13, 2020, Plaintiff filed a late Reply.

On August 18, 2020, the Court found that Plaintiff had submitted new evidence in its Reply papers filed only three days before the hearing. (8/18/20 Minute Order.) The Court also noted that the Reply papers were improperly electronically served on a self-represented litigant who had not expressly consented to electronic service. (Id.) For these reasons, the Court continued the matter to allow Defendant Jacobs an opportunity to respond to the new evidence. (Id.) On October 13, 2020, Defendant Jacobs filed a supplemental brief, which does not include a proof of service. Rather than continue this matter a third time and order Defendant Jacobs to file a proof of service, in the interest of judicial economy, the Court assumes it was properly served on Plaintiff unless Plaintiff indicates otherwise at the hearing. [Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Discussion

  1. Plaintiff’s Evidentiary Objections

Plaintiff’s objections to Defendant Jacobs’ declaration, Nos. 1-4, are OVERRULED.

  1. First and Fourth Cause of Action

Plaintiff alleges breach of equipment financing agreement and breach of guaranty. “To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

Plaintiff presents evidence of the following:

Southern California Leasing, Inc. (“SCL”), as the secured party, entered into a written Equipment Financing Agreement, No. 75-BRO-10439 (the “Financing Agreement”) with Defendant DBS whereby SCL provided financing to Defendant DBS to acquire certain red camera equipment (the “Equipment”), which is itemized in Exhibit A. (UMF No. 1.) Defendant Jacobs executed a Personal Guaranty for the indebtedness of Defendant DBS under the Financing Agreement on March 17, 2016. (Mot., Matthew Jacobs Decl., ¶ 9, Exh. 4.) On or about March 17, 2016, Defendant Jacobs as President of Defendant DBS, signed the Financing Agreement which provides, in pertinent part, the following: (1) that Defendant DBS would make 60 monthly payments of $401.64, plus applicable taxes and fees when they became due; (2) that Defendant DBS agreed to keep the Equipment insured in an amount not less than the replacement cost until the Financing Agreement was terminated; (3) that failure to provide SCL with satisfactory evidence of insurance within thirty (30) days could result in SCL obtaining insurance on Defendant DBS’ behalf; (4) that Defendant DBS would be required to reimburse SCL for any insurance obtained on its behalf; (5) that the failure to pay an amount due under the Financing Agreement within five days or failure to perform any other obligation required by the Financing Agreement constituted default; (6) and that in the event of default, SCL could declare the casualty value or such lesser amount as set by law immediately due and payable, take possession and if appropriate, render unusable any of the Equipment wherever it is located, without any process of law. (UMF No. 2; Mot., Matthew Jacobs Decl., ¶ 8, Exh. 1.) On or about April 27, 2016, SCL and Defendant DBS executed an addendum to the Agreement which lowered the monthly payments to $397.73. (Id.) SCL assigned its rights under the Financing Agreement to Banc of California in April 2016, which then assigned its rights to Plaintiff in October 2016. (UMF No. 4; Mot., Matthew Jacobs Decl., ¶ 10, Exhs. 5, 6.) Defendant Jacobs does not dispute that he executed the Financing Agreement and Personal Guaranty.

Plaintiff also submits evidence that Defendant DBS stopped making payments in January 2019. (Mot., Matthew Jacobs Decl., ¶ 11, Exh. 9.) Due to Defendant DBS’ default, on April 12, 2019, Plaintiff exercised its right to accelerate and demanded the unpaid balance from Defendant DBS under the Financing Agreement and from Defendant Jacobs under the Personal Guaranty. (Id., Exh. 7.) Defendants did not make any payments pursuant to the demands. (Id.)

As to the element of damages, Plaintiff argues that as of January 3, 2020, there is due and owing $12,730.16. (UMF No. 6; Mot., Matthew Jacobs Decl., ¶ 12; Exhs. 8, 9.) As evidence, Plaintiff submits a copy of Defendant DBS’ account statement prepared by Orion First Financial, LLC, Plaintiff’s servicing agent, reflecting a balance of $12,730.16 based on 26 remaining payments of $397.73, interest of 18% for 350 days at $5.10 per day, 9 late charges of $39.70, asset investigation charges of $87.00, and repossession expenses of $160.00. (Id., ¶¶ 1, 12, Exh. 8, 9.) However, Plaintiff also submits a payment history dated January 3, 2020, described as a “true and correct copy,” demonstrating that Defendant DBS was paying a monthly lease amount of $401.64 and that at least two late charges of $40.16 were assessed. (Id.) Plaintiff’s evidence demonstrates Defendant DBS was paying a higher monthly payment than that due under the Financing Agreement. (See id.) This overpayment is significant as it could mean that the principal balance owed and accrued interest should be lower than that claimed by Plaintiff. Due to this conflicting evidence, the Court is unable to verify the amount of damages Plaintiff claims is owed. The amount of damages must be proven before summary judgment or summary adjudication is granted. (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243.) Thus, Plaintiff has not carried its initial burden to show no triable issue of material fact exists as to the element of damages.

The Court notes that Defendant Jacobs sets forth several arguments disputing the amount of damages owed. However, as Plaintiff did not carry its initial burden, the Court does not reach the merits of those arguments.

B. Second Cause of Action – Recovery of Personal Property

Plaintiff also alleges a cause of action for recovery of personal property seeking to recover the Equipment identified in Exhibit A of the Financing Agreement. (Mot., p. 8:14-16.)

Commercial Code section 9609, subdivision (a), provides that after default, a secured party may take possession of collateral or, without removing it, “render equipment unusable and dispose of collateral on a debtor’s premises under Section 9610.” A secured party may take possession of collateral pursuant to judicial process or without judicial process so long as it is done without breach of the peace. (Com. Code, § 9069, subd. (b).) “If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties.” (Com. Code, § 9060, subd. (c).)

“A secured party wishing to repossess by judicial action, can bring an action in replevin or proceed under the statutory successor to replevin, an action for claim and delivery. [Citation.] ‘Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by contractual lien) may recover possession of that specific property before judgment.’ [Citation.]” (Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 241.) To succeed on a claim and delivery cause of action, a plaintiff must demonstrate that a defendant has possession of the property in dispute at the commencement of the action; that plaintiff has “the right to immediate and exclusive possession of such property at the time of the commencement of the action;” and that a demand for possession was made before the action was commenced. (Law v. Heiniger (1955) 132 Cal.App.2d Supp. 898, 899-901.) “In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention.” (Code Civ. Proc., § 667.)

As noted above, Plaintiff presents evidence that the parties entered into a Financing Agreement and that the rights under the Agreement were assigned to Plaintiff. (UMF Nos. 1, 4; Mot., Matthew Jacobs Decl., ¶¶ 7, 10, Exhs. 1, 5, 6.) Pursuant to the terms of the Financing Agreement, Defendant DBS granted Plaintiff a security interest in the seven pieces of Equipment fully described in Exhibit A (the “Collateral”). (UMF No. 1.; Mot., Matthew Jacobs Decl., ¶ 7, Exh. 1.) SCL perfected its security interest in the Collateral by filing a UCC-1 financing statement with the Secretary of State on March 25, 2016, filing number 167516398842. (Id., Exh. 2.) Defendant Jacobs, as president of Defendant DBS, executed a Delivery and Acceptance Certificate on April 25, 2016, demonstrating that the Collateral Equipment was delivered to and accepted by him. (Mot., Matthew Jacobs Decl., ¶ 7, Exh. 1.) The Financing Agreement provides that upon the occurrence of a default, Plaintiff is entitled to take possession of the collateral. (UMF No. 1; Mot., Matthew Jacobs Decl., ¶ 7, Exh. 1.) Under the Financing Agreement, a default includes failing to pay any amount due within (5) days of the due date. (UMF No. 1.; Mot., Matthew Jacobs Decl., ¶ 7, Exh. 1.) As noted above, Plaintiff presents evidence that Defendant DBS stopped making payments due under the Financing Agreement in January 2019. (Mot., Matthew Jacobs Decl., ¶ 12, Exh. 9.) Plaintiff also presents evidence that, on April 12, 2019, it made a demand to Defendants that they assemble and deliver the Collateral Equipment to Plaintiff. (Id. at ¶ 11, Exh. 7.)

Based on the above, the Court finds Plaintiff met its initial burden. The burden now shifts to Defendant Jacobs to show there is a triable issue of material fact.

In response to each of Plaintiff’s material facts as to the second cause of action, Defendant Jacobs simply copied and pasted the following response: “disputed – damages are to be proven and this is not a carte blanche for [Plaintiff] to overcharge me – refuse payments, and to accrue excessive fees and interest – see declaration of Defendant.” More importantly, Defendant Jacobs does not argue that Plaintiff is not entitled to possession of the Collateral Equipment. Rather, he appears to take issue only with the amount of damages Plaintiff claims. (Oppo., p. 3:15-19; p. 4:13-18, Gary Jacobs Decl., ¶¶ 2-3; 10/13/20 Def. Supp. Brief, pp. 3:8-4:1, pp. 4:24-5:1.) Specifically, Defendant Jacobs argues that Plaintiff overbilled him $443.49 every month, that he was never informed of any additional charges, and that the overcharge constituted a breach that precludes Plaintiff from recovering any damages under the Financing Agreement. (Oppo., p. 3:15-19; Gary Jacobs Decl., ¶¶ 2-3.) In Reply, Plaintiff clarifies that Defendant DBS was billed an additional $41.85 between August 2016 through December 2018 because it did not provide proof of insurance as required by the Section 12 of the Financing Agreement. (Reply, Matthew Jacobs Decl., ¶¶ 3-5.) Plaintiff also provided copies of notices SCL mailed to Defendants on May 11, 2016 and May 20, 2016 wherein SCL reminded Defendant DBS that it was required to provide proof of insurance or that SCL would secure an insurance policy on Defendant DBS’ behalf and charge an additional $41.85 per month. (Id., Exhs. 2, 3.) In his supplemental brief, Defendant Jacobs argues that he did obtain insurance and that he did so through Christina Tran, an employee of SCL. (10/13/20 Def. Supp. Brief, p. 2:9-20.) Defendant Jacobs provides an email exchange between himself and Tran, a blurry insurance quote, and a screenshot of his inbox. (Id., Unnumbered Exhibits.) However, none of the documents submitted explicitly reference the Financing Agreement or otherwise identify the Collateral Equipment, nor does Defendant Jacobs submit actual proof of insurance. Defendant Jacobs also argues he never received these notices because they were mailed to 10560 Wilshire Blvd., #1704, Los Angeles, CA 90024, which was not his home address, and that he had previously informed SCL he lived in San Diego, not Los Angeles. (10/13/20 Supp. Brief, pp. 2:21-3:6.) However, the email Defendant Jacobs submits in support of this argument demonstrates that he used the Wilshire Address because he frequently moved and even confirmed the Wilshire Address was the address used for Defendant DBS. (Id., Unnumbered Exhibit.)

In any case, the arguments noted above do not demonstrate a triable issue of material fact exists as to Plaintiff’s second cause of action. Indeed, Defendant Jacobs admits that Defendant DBS is currently in default under the Financing Agreement, which entitles Plaintiff to possession of the Collateral Equipment. (See Oppo., Gary Jacobs Decl., ¶ 6.) Accordingly, summary adjudication is GRANTED.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Hanmi Bank’s request for summary adjudication is DENIED as to the first and fourth causes of action but is GRANTED as to the second cause of action.

Moving party is ordered to give notice.

Case Number: 19STLC06202    Hearing Date: October 26, 2020    Dept: 25

HEARING DATE:    Mon., October 26, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME Hanmi Bank v. DBS Entertainment Productions, Inc., et al.

CASE NUMBER: 19STLC06202 COMPL. FILED: 07-01-19

NOTICE:   OK DISC. C/O: 11-28-20

DISC. MOT. C/O:    12-13-20

TRIAL DATE: 12-28-20

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

MOVING PARTY:   Plaintiff Hanmi Bank

RESP. PARTY: Defendant Gary Jacobs, in pro per

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

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Hanmi Bank’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication, is CONTINUED TO NOV 19, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

SERVICE

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a)  OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))  OK

OPPOSITION: Filed on March 23, 2020 [   ] Late [   ] None

REPLY: Filed on August 13, 2020 [X] Late [   ] None

ANALYSIS:

  1. Background & Discussion

On July 1, 2019, Plaintiff Hanmi Bank (“Plaintiff”) filed an action for breach of an equipment financing agreement, recovery of personal property, conversion, and breach of guaranty against Defendants DBS Entertainment Productions, Inc. (“DBS”) and Gary Jacobs (“Jacobs”) (collectively, “Defendants”). Defendant Jacobs filed an Answer, in pro per, on September 24, 2019. Following Defendant DBS’ failure to answer, default was entered against it on September 27, 2019.

On January 22, 2020, Plaintiff filed the instant Motion for Summary Judgment or, in the Alternative, Summary Adjudication (the “Motion”). On March 23, 2020, Defendant Jacobs filed an opposition, and on August 13, 2020, Plaintiff filed a late reply.

On August 18, 2020, the Court found that Plaintiff had submitted new evidence in its Reply papers filed only three days before the hearing. (8/18/20 Minute Order.) The Court also noted that the Reply papers were improperly electronically served on a self-represented litigant who had not expressly consented to electronic service. (Id.) For these reasons, the Court continued the matter to allow Defendant an opportunity to respond to the new evidence presented in Plaintiff’s Reply papers. (Id.)

On October 13, 2020, Defendant filed a supplemental brief. However, the supplemental brief has not yet been made electronically available. Thus, the matter is CONTINUED to allow the Court additional time to make the supplemental brief electronically available for the Court’s review.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Hani Bank’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication, is CONTINUED TO NOV 19, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

Moving party is ordered to give notice.

Case Number: 19STLC06202    Hearing Date: August 18, 2020    Dept: 25

HEARING DATE: Tue., August 18, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Hanmi Bank v. DBS Entertainment Productions, Inc., et al.

CASE NUMBER: 19STLC06202 COMPL. FILED: 07-01-19

NOTICE: OK DISC. C/O: 11-28-20

DISC. MOT. C/O: 12-13-20

TRIAL DATE: 12-28-20

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

MOVING PARTY: Plaintiff Hanmi Bank

RESP. PARTY: Defendant Gary Jacobs, in pro per

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

(CCP § 437c)

TENTATIVE RULING:

In light of the new evidence presented in Plaintiff’s reply papers, and to provide Defendant Jacobs an opportunity to respond, the Motion is CONTINUED TO OCTOBER 26, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Defendant must file any responsive papers at least five court days before the next scheduled hearing. No further briefing by Plaintiff is permitted.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on March 23, 2020 [ ] Late [ ] None

REPLY: Filed on August 13, 2020 [X] Late [ ] None

ANALYSIS:

  1. Background

On July 1, 2019, Plaintiff Hanmi Bank (“Plaintiff”) filed an action for breach of equipment financing agreement, recovery of personal property, conversion, and breach of guaranty against Defendants DBS Entertainment Productions, Inc. (“DBS”) and Gary Jacobs (“Jacobs”) (collectively, “Defendants”). Defendant Jacobs filed an Answer, in pro per, on September 24, 2019. Following Defendant DBS’ failure to answer, default was entered against it on September 27, 2019.

On January 22, 2020, Plaintiff filed the instant Motion for Summary Judgment or, in the Alternative, Summary Adjudication (the “Motion”). On March 23, 2020, Defendant Jacobs filed an opposition, and on August 13, 2020, Plaintiff filed a late reply.

  1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Discussion

Plaintiff moves for summary judgment or, in the alternative, summary adjudication on the basis that no triable issue of material fact exists as to the first, second, and fourth causes of action. (Mot., pp. 1-2.) In opposition, Defendant Jacobs does not dispute the existence of an agreement between the parties, but argues Plaintiff breached the agreement by charging Defendant an amount greater than that agreed to by the parties on several occasions and disputes the amount of damages Plaintiff claims. (Oppo., pp. 3:15-25; 4:3-5.) Notably, Plaintiff’s evidence demonstrates Defendant Jacobs was billed $443.49 on multiple occasions, which is greater than the $397.73 it claims was Defendant Jacobs’ monthly obligation. (Mot., Matthew Jacobs Decl., ¶¶ 8, 12, Exh. 9.)

In its reply papers, Plaintiff presents new evidence explaining the difference was permitted under the parties’ agreement and argues the Court has the discretion to consider new evidence presented in reply papers. (Reply, p. 4;9-13.)

Indeed, “[i]t is well-established that the trial court’s consideration of additional reply ‘evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material.’ [Citation.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449.) (Italics added.)

Here, Plaintiff filed its reply papers only three court days before the hearing, not the required five. (Code Civ. Proc., § 1005, subd. (b).) Furthermore, the reply papers were served on Defendant Jacobs via electronic service. (Reply, Proof of Service.) However, electronic service on a self-represented litigant requires that he or she affirmatively consent to electronic service by filing and serving a notice so stating. (Cal. Rules of Court, rule 2.251, subd. (c)(3)(B).) The Court’s record reflects no such consent on the part of Defendant Jacobs.

Thus, the hearing is CONTINUED to allow Defendant Jacobs an opportunity to respond to the newly presented evidence in Plaintiff’s late reply. No further briefing by Plaintiff is permitted.

  1. Conclusion & Order

In light of the new evidence presented in Plaintiff’s reply papers, and to provide Defendant Jacobs an opportunity to respond, the Motion is CONTINUED TO OCTOBER 26, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Defendant must file any responsive papers at least five court days before the next scheduled hearing. No further briefing by Plaintiff is permitted.

Moving party is ordered to give notice.